Two days later, the girl reported to Downey Police that she had been raped while inside Valdez Junior's room. Upon hearing of the charges filed April 29, Junior turned himself in and submitted to saliva and blood tests. He was released on bail and continued to organize dance parties and host and produce his television and radio programs about youth Rave culture.

Eight months later, on December 2, 1993, Downey Police and FBI agents engaged in an undercover surveillance operation allegedly to undercover a plot by Valdez Junior to have the girl murdered for a price of $150. According to police, another dance party promoter who happened to have worked on many cases in the past as an FBI informant heard about the plan from Valdez Junior during the preceding months. Valdez Senior was not a suspect.

On December 2, 1993, Jesse James, the party promoter and FBI informant whose real name was Manuel Guerra[1], arrived with an undercover Downey Police officer at the Valdez residence. Valdez Junior had met the informant approximately ten months prior. Like Valdez Junior, he promoted dance parties and occasionally worked security at the door of them. Guerra wore a concealed wiretap as a surveillance team made up of FBI and Downey Police sat in a van three houses down the street. In the driveway of the house, the two had a conversation with Valdez Junior that ranged from the weather to Valdez Junior's legal predicament. While discussing the rape allegations, Valdez Junior said, "I'm not even guilty, man." Guerra said to Junior, "You tell me what you want to do." Junior replied "Intimidation, I don't know bro." Subsequently, Junior discussed with the informant and undercover officer "whacking" the girl and Junior said, "I don't like to give definitions."

At some point after this conversation, Valdez Senior and his other son, Steven, arrived with hamburgers for Junior. There are conflicting accounts as to how much time passed before Valdez Senior walked in. According to Junior and Senior, Junior asked his father if he could use the gun he kept in the attic for security at the door of the nightclub parties he organized. Guerra was to carry the gun in front of the club to cut down the costs of hiring an armed security guard. According to Guerra, the gun was bought to kill the girl. Neither account was captured on the wiretap version played during trial. Senior told Junior that he lent the gun to a relative and Junior and Guerra asked once more if he could get a gun. Then Senior went across the street where he knew the people sold all kinds of pawned items. He returned to the house with a gun dealer. Guerra and Junior agreed to pay "halfers" but Guerra didn't have the money on him so Senior loaned Junior $100 to buy the gun for $200. At this time, there was a lengthy discussion about types of guns and bullets almost exclusively between Guerra and the gun dealer. Guerra told Junior, "Why don't you go buy it right now…Buy it."

Then Valdez Junior, Guerra, and the undercover officer drove away in the officer's car. Halfway down the street, a team of Downey Police and FBI agents stopped the car and arrested all occupants, ostensibly for car jacking. A few hours later, Downey Police called Valdez Senior to pick up his son they claimed was arrested by mistake. Upon arrival at the police station, Downey Police arrested Valdez Senior. Senior and Junior were charged with solicitation and conspiracy to commit murder.

On January 6, 1994, the rape trial of Valdez Junior began. The prosecution presented no physical evidence. Their case was built upon the testimony of the girl[2] and their rebuttal witness, the undercover Downey Police Officer involved in the FBI-aided surveillance operation [3]. The officer was permitted to tell the jury that Valdez Junior and Senior had recently been arrested on charges of solicitation and conspiracy to kill the girl. On January 12, 1994, Valdez Junior was found guilty of rape.

Almost a full year later, on December 1, 1994, the conspiracy trial of Valdez Junior and Senior began. On December 21, 1994-four day before Christmas-the defendants were found guilty on both counts and sentenced to 25 years to life.

Questions Presented
1. Why did police agents carry out an undercover surveillance operation allegedly to uncover a murder conspiracy where they had just one suspect and at least two are required for a genuine conspiracy under the plurality requirement?

2. Why did police agents and the prosecution consistently violate procedural rules to convict Valdez Senior of conspiracy to commit murder where he was not a suspect of any crime and there was a substantial lack of evidence for conspiracy?

Short Answers
1. Police agents likely carried out the undercover surveillance operation either to investigate the crime of solicitation by Junior or obtain a confession of rape by Junior, but not to investigate conspiracy to murder.

2. Police agents and the prosecution likely broke procedural rules to convict Senior of conspiracy to commit murder because otherwise conspiracy charges would fail as to Junior as well pursuant to the plurality requirement.

The Plurality Requirement
A conspiracy conviction requires an agreement between at least two people not pretending to conspire. The plurality requirement, also known as the Sears rule, is well settled law in the federal system Sears v. United States, (5th Cir.) 343 F2d. 139, 142 (1965). The rule was affirmed in California. People v. Liu, 46 Cal. App. 4th 1119, 1130, 54 Cal. Rptr. 2d 578, 584 (1996). The rational for the rule is fairly simple.

"Since the act of agreeing is a group act, unless at least two people commit it, no one does. When one of two persons merely pretends to agree, the other party, whatever he may believe, is in fact not conspiring with anyone. Although he may posses the requisite criminal intent, there has been no criminal act." United States v. Escobar de Bright, (9th Cir.) 942 F.2d 1196, 1199 (1984).
Criminal conspiracy is an offense apart from the actual criminal act because of the perception that "collective action toward an antisocial end involves a greater risk to society than individual action toward the same end." LaFave & Scott, Criminal Law § 61, at 459-60 (1972). Such danger is non-existent when a person "conspires" only with government agents. Finally, the plurality requirement responds to the same concern that underlies the entrapment defense: that the legitimate law enforcement function of crime prevention does not include the manufacturing of a crime where none would exist absent the government's presence.

Purpose of the Undercover Surveillance Operation
According to Downey Police, the purpose of the undercover surveillance operation was to investigate the crime of conspiracy to commit murder. According to then Lieutenant, Steve Garza, they were forced to act quickly to stop a murder plot in progress based on the information they received from FBI informant, Manuel Guerra (interview 2/26/04). At trial, Guerra also indicated that preventing a murder was his motivation for pretending to participate:

Q:…Were you agreeing to participate in the sense that you were going to do it, or were you doing something else?
Guerra: I was pretending
Q: Why were you pretending?
Guerra: Because I was concerned with the safety of the girl.
Q: Did you know her?
Guerra: No, I Didn't.
Q: Why should you be concerned with her safety?
Guerra: Well, I was brought up the way that if it's within my hands to prevent someone of getting hurt, whether human or an animal, if I could stop it, why not do it?
Q: But isn't one way of stopping it for you to say, "Whoa, let me out of here, I don't want to have any part of something like this?"
Guerra: No. That's one way. But I saw the fear in David's eyes, you know. He wanted - He was determined to get this done. And either way, by me not being - by me saying, "Whoa, let me out of this, either way the girl was still going to get hurt. (Transcripts 194,195).
Before the surveillance operation, Downey Police had just one suspect allegedly involved with this "conspiracy." Valdez Senior had not been suspected of any involvement. This fact was admitted by Downey Police during trial and confirmed in a recent phone interview with Lieutenant, Steve Garza, then lead detective in the case (interview 2/26/04). While being questioned by the prosecutor during trial, officer Charles, who played the undercover role during the surveillance operation, also indicated that Valdez Senior's alleged involvement came as a surprise.

Q: Did Senior in any way show any type of, like a questioning attitude, like, "what are you talking about a gun for?" Officer Charles: Not at all.
Q: Did that surprise you? Officer Charles: Yes, it did.
Q: Why?
Officer Charles: I did not think his father would be involved.
Q: So that in terms of your briefing, you had received no information in that regard, is that correct?
Officer Charles: No, I had not.
Q: So it's correct, you had received nothing to indicate one way or the other the father's complicity?
Officer Charles: That's correct.
Q: This was obviously a new element, isn't that right? Officer Charles: Yes. (Transcripts 728).
Downey Police did not consider Valdez Senior a suspect, nor is there any indication they had any other suspects. The only suggestion that Valdez Junior might be "conspiring" with anyone other than police agents came from the testimony of the FBI informant, Manuel Guerra. Guerra testified that he spoke to Valdez Junior about "intimidating" the girl while standing in front of club D-Lite in Hollywood on November 28, 1993 (fours days before the surveillance operation). Guerra testified that the security guard came into the conversation and Junior allegedly asked him if he had any access. Then, according to Guerra, "the guy said yes, that he could get guns." (transcripts 192). Guerra further testified to asking Junior if it was "cool to talk around him," and Junior allegedly replied, "That's my best friend. He's cool. He knows what we're talking about." (transcripts 192).

However, Downey Police did not consider the security guard a suspect. Even if we assume Guerra's uncorroborated statements are correct, the surveillance operation did not attempt to implicate this security guard, nor was he called to testify, nor were any steps taken to investigate him. At trial, Valdez Junior's attorney asked officer Charles whether Downey Police investigated the security guard or anyone else regarding conspiracy to murder.

Q: Did Jesse [Guerra] tell you that there was a security guard there that David had said was his best friend, and that the security guard was going to get a gun? Did Jesse tell you that?
Officer Charles: I don't remember the best friend part, but the security guard could probably get the new gun.
Q: And, based on that, I suppose Downey Police Department then investigated that security guard?
Bozanich: Objection.
Court: Sustained.
Q: Did you go to club D-Lite at any time and try to obtain statements from any persons that may have been a security guard at that location on or about November 28, 1993?
Officer Charles: I did not personally, no.
Q: To your knowledge did anybody from the Downey Police Department go and try to investigate any witnesses at club D-Lite on or about November 28, 1993?
Bozanich: Objection, irrelevant.
Court: Sustained. (Transcripts 774)
Q: Did you at any time investigate any other persons with respect to this charge, conspiracy to commit murder, other than the two persons that are seated here in court today? Bozanich: Objection, irrelevant, your honor.
Court: Sustained. (Transcripts 773).
We are left with a law enforcement plan designed, according to Downey Police, to investigate conspiracy to commit murder with just one suspect (Valdez Junior). Under the best of circumstances, Downey Police would have hoped to record incriminating statements by Valdez Junior planning a murder with police agents playing along. But no court would consider that evidence since, as discussed, a conspiracy requires at least two genuine conspirators.

Just as Downey Police lacked probable cause to investigate conspiracy to commit murder before the surveillance operation, their stated purpose of preventing a murder makes no sense. Junior had only discussed intimidating the girl with the FBI informant who was not only playing along but admitted at trial that he actually approached Junior to initiate the plan (Transcripts 548). Guerra took it upon himself to suggest to Junior that he needed a "hit man" (Transcripts 550) and that he would act as the "middleman." (Transcripts 254). Thus, Downey Police had a "conspiracy" on their hands that originated with a police agent and involved no one else but police agents. There was not even a hit man-they would have to supply one themselves in the form of undercover officer Charles. The dangers to society are nonexistent where a person "conspires" only with government agents.

If Downey Police were genuinely concerned with the girl's safety, there was a simple solution: stop creating a plan to kill her. Downey Police were engaging in exactly the type of illegitimate law enforcement function the plurality requirement and entrapment defense were designed to prevent: that of manufacturing a crime where one would not have occurred absent their participation.

Solicitation or Rape Confession
The real reason Detective Bradfield and FBI agents[4] planned the undercover surveillance operation was never disclosed at trial. This is because Detective Bradfield and the two FBI agents involved did not show up to trial. Junior's defense attorney tried but failed to fulfill the extra procedural rules necessary to subpoena the FBI agents and Detective Bradfield was already enjoying his retirement.

One plausible reason for the undercover operation was to investigate the crime of solicitation. Unlike conspiracy, solicitation has no plurality requirement. It's purpose is to prevent solicitations from resulting in the commission of certain crimes and to protect the public from exposure to inducements to commit them. People v. Litt, 221 Cal. App. 2d 543, 34 Cal. Rptr. 592 (1963). Based on the information given to them by Guerra-that Valdez Junior asked him to intimidate the girl-Downey Police could have had probable cause to investigate solicitation (although there is much dispute about who solicited who).

One of the purposes of punishing solicitation theoretically could have been furthered. The first purpose-to prevent the actual crime-could not have been furthered, assuming police agents would not go beyond pretending. But the second purpose-to protect the public from exposure to inducements to commit crime-theoretically could have been furthered. Here, the reasoning would be that we may want to punish Valdez Junior for exposing Guerra, or someone like him, to inducements to commit intimidation or murder. When Guerra testified about being afraid that Junior might ask someone else and said, "I saw the fear in David's eyes, you know. He wanted - He was determined to get this done," Guerra was attempting to further a case for solicitation, not conspiracy.

Another reason Detective Bradfield and FBI agents may have planned the undercover surveillance operation could have been to capture a confession from Junior concerning the pending rape charges. As mentioned, Downey Police had tried but failed to collect any physical evidence. Indeed, a copy of the wiretap reveals that Guerra took the unusual step of asking Junior whether he raped the girl:

Guerra: Did you do it?
Valdez Junior: I'm not even guilty, dude. I could understand if the cops…found bruises or something. I wasn't even with the chick.
Guerra: You brought her here.
Valdez Junior: Yeah, I brought her here. We came back to watch a movie. Something was really weird about that, I felt it, you know how you guys feel some shit? I felt like something was going on, I felt like something was going to happen. (copy of wiretap).
The purpose of carrying out the undercover surveillance operation may have been to investigate solicitation, to obtain a rape confession, or both. What is clear is that the option of pursuing conspiracy charges became a possibility only when Senior unexpectedly came into the picture. On December 2, 1993, Downey Police were in an uncertain position. Their case for rape against Junior, already lacking physical evidence, was weakened yet further with a failed attempt at obtaining a confession undercover.

Their case for solicitation was not strong either. If they tried to pursue solicitation to intimidate for purposes of preventing a witness from attending trial, they would have had to overcome evidence that such a plan was instigated by the FBI informant and his co-workers [5]. Also, such a charge carries a maximum punishment of just one year. Cal. Pen. Code § 653f (Deerings 2004). If they tried to pursue solicitation to commit murder, they would have had to overcome the fact that the FBI informant came up with the idea of a hit man. This charge carries a maximum punishment of nine years. Id.

Thus, Downey Police were faced with a choice. Either they could proceed with the lesser and uncertain case for solicitation against Junior, or they could make headlines by charging both Junior and Senior with conspiracy to commit murder-a crime that carries a punishment in California equal to murder in the first degree. Cal Pen Code § 182 (Deerings 2004).

At least two circumstances unique to the case may have contributed to the decision to push for the far more severe conspiracy charges. First, Downey Police were openly opposed to Valdez Junior's plans to rent out an entire roller skating rink in the city for club jump, a dance club that would regularly bring thousands of youths into Downey from the surrounding communities [6]. Second, officer Bradfield, the senior officer in charge, was set to retire in one week. Officer Bradfield may have wanted to end his career with a noteworthy conviction.

Finally, there is one more troubling question concerning the conduct of Downey Police and the FBI. If they really believed on December 2, 1993, that they had just uncovered a genuine murder conspiracy with the unexpected involvement of Valdez Senior, then why did they stop there? Why didn't they attempt to play along further to get more evidence on Senior than a fuzzy wiretap capturing no incriminating statements? The girl's safety could not have been a reason for stopping since the supposed hit man was a police agent.

The Plurality Requirement and the Edited Wiretap
The wiretap was most likely edited, according to an audio forensic expert who never testified. According to a declaration by Norman Perle[7], there appeared to be "serious deficiencies in the recorded conversation that bare on the authenticity of the recorded evidence." He added:

"Throughout Side 1 there were at least 40 areas of audio where the waveform patterns were strikingly similar to those, which are present when a tape recorder is stopped and re-started. This is an unusually high quantity and would suggest a pattern of falsification. The sounds seem to switch back and forth from outside to inside a car. This is also a suspicious finding in that it would be similar had the tape been an edited version." (Perle 3,4).
Editing was likely the only way to implicate Valdez Senior and thereby fulfill the plurality requirement. Valdez Senior had arrived at some point after the three (Junior, Guerra, and Charles) talked about the rape charges and "whacking" the girl. When Senior was in the picture, the wiretap shows that none of the four discussed the rape charges or the girl. No statements were captured to contradict Senior and Junior's contention that Senior bought the gun at Junior's request for security purposes[8] and had no knowledge about what the three were discussing prior to his arrival.

According to the wiretap, the gun purchase and Senior's few statements occur right after the incriminating conversation between Junior and the police agents so that it sounds-at it did to the jury-like Senior must have been in on the plan, and obviously must have bought the gun for that purpose. However, the real events likely did not unfold in this way. According to Junior, there were many sections of dialogue cut from the wiretap recording[9]. Oddly, there was no introduction between Senior and the visitors captured on the wiretap, nor any other statements that could have provided a context for the gun purchase. According to Senior, Guerra indicated that the gun could help cut down security costs at their rave club events. "I don't mind holding an empty gun in my pocket," Senior remembered Guerra telling him.

In addition to the missing context, the wiretap's quality becomes extremely poor once Senior comes into the picture, with increasing levels of distortion and what Officer Heotker called, "bleed over from a conversation that was going on in the van over the wire." (Transcripts 682).

As mentioned, Downey Police were "surprised" to discover that Valdez Senior was involved in the conspiracy. In fact, they did not even arrest him until several hours after detaining Junior. They called Senior from home and told him they made a mistake by arresting Junior, and that he should come to the station to pick up his son. Once there, Senior was directed toward Detective Bradfield's office who handcuffed Senior upon entry. Detective Bradfield asked Senior why he bought the gun and Senior replied, "for security." According to Senior, at one point in the conversation, Bradfield yelled, "I know you bought the gun for something else." Detective Bradfield also interrogated Junior a few hours earlier[10].

Many facts indicate that Senior was not involved in a conspiracy to murder: he made no statements about such a plan, others made no statements about such a plan in front of him, he was never a suspect, he had never met the police agents before, and the supposed price of murder was just $150. In light of all of this, editing the wiretap to remove context and make Senior seem like he was involved in a previous conversation was essential to link him to conspiracy. Without doing so, Downey police would not be able to charge Senior or Junior with conspiracy to commit murder.

The Plurality Requirement and Prosecutorial Misconduct
Building a case against Valdez Senior was very challenging for the prosecution due to the reasons just discussed. Bozanich had to convince a jury that Senior would conspire to murder simply to keep his son from being subject to rape charges he believed were false based on witnessing nothing unusual from the adjacent room on the night of April 27, 1993. The case was so weak that the District Attorney offered Junior a misdemeanor plea bargain with probation (Valdez Junior, 4/2/04 declaration). The jury was also to believe that Senior would conspire to commit a murder with two people he had never spoken to before who would commit the murder for $100 to $150-less than the price of the supposed murder weapon (Transcripts, 494). Valdez Senior was a father, an army veteran, and a mechanic for Rockwell International for over thirty years.

The necessity of convicting Senior to fulfill the plurality requirement was acknowledged in a side bar conversation during trial and likely shaped the prosecution's aggressive approach.

Filipi: Now, conspiracy, the law, I think, is very well-settled. You can only conspire when there's a meeting of the minds. You cannot conspire with somebody who is pretending to conspire, pretending to agree. That's not a true conspiracy.
Bozanich: So stipulated. That's not what the instruction talks about.
Filipi: Well, if they only find that it was Jesse James [Guerra] or the undercover officer, because they obviously were pretending, then they cannot - let me - one second.
Court: Okay.
Filipi: They have to be told that there cannot be a conspiracy. Because if they choose to reject the issue of the dad agreeing, let's say they believe that he had nothing to do with it and there was no agreement with respect to the father, then that only leaves Jesse James and Carl Charles. And by law they cannot - you cannot have a conspiracy with somebody pretending to agree. (Transcripts 1262).

The plurality requirement may explain why the prosecution fought extra hard to keep Valdez
Senior in the proceedings despite a court-appointed psychiatrist's testimony indicating that he was incompetent to stand trial. Senior had fallen while in county jail and suffered a severe head injury that caused a deteriorating mental state, the loss of 80 lbs, lost control of bowel movements, and confinement to a wheel chair. Despite being based on three well documented interviews[11], the prosecution argued, "I realize there is quote, evidence, unquote, before the court, including an opinion of a psychiatrist. But I think the law demands a little more than this type of really goofy opinion." (Transcripts A67).

The plurality requirement may also explain why the prosecution felt compelled to fabricate evidence. Bozanich told the jury that Valdez Senior was discussing "hollow point bullets" and "killing power" on the fuzzy wiretap[12]. Those words actually came from the FBI informant when he was talking about guns and bullets with the gun dealer. In his closing arguments, the prosecution even speculated that Senior was the "ringleader." He continued, "He's attending court with him [Junior], he's hiring lawyers for him…He knows what a dummy his son is and how he screws things up." (Transcripts 1354, 1373). Finally, he added, "I suspect Senior wasn't thinking Uzi for security." (Transcripts 1461). Again, only the FBI informant mentioned an Uzi in the wiretap.

Although the plurality requirement may explain prosecutorial overreaching and misconduct, many other factors were necessary to make Valdez Senior's conviction a reality. First, Senior's defense attorney, by his own admission[13], did very close to nothing. His statements appear in just 15 out of about 1,500 transcript pages. Second, Valdez Senior was physically unable to testify on his own behalf or to assist his counsel on his own behalf. Third, the court denied a jury request for a Spanish translation of the wiretap. Most of Senior's very few statements captured on the wiretap were in Spanish[14]. A former juror later indicated that he had to go off of what another jury said it meant, and that he felt uneasy about that. And finally, every day of the trial, Valdez Senior was pushed into the courtroom in his wheelchair, sporting LA County Jail attire, a prejudicial practice that is normally grounds for a new trial because it undercuts the presumption of innocence People v. Taylor, 31 Cal.3d 488, 494, 183 Cal. Rptr. 64 (1982).

Conclusion
Understanding the plurality requirement in the context of the Valdez Case is important, first, because it indicates that Downey Police and FBI agents engaged in a law enforcement function that could not have included the goal of crime prevention. And second, the editing of the wiretap, the dismissing of psychiatric testimony, and the fabricated statements attributed to Valdez Senior were all necessary to sustain conspiracy charges pursuant to the plurality requirement.

The surveillance operation was likely not a detailed collaboration between Downey Police and FBI agents to remove Valdez Junior from the neighborhood for his persistent dance party organizing and growing influence among youths through his radio and television shows-at least not under a conspiracy theory. Junior's activism may have motivated Downey Police to take advantage of a well-placed FBI informant and attempt to pursue solicitation charges or acquire a rape confession. The decision to pursue conspiracy charges, however, was made after the fact and may have been motivated by Junior's activism, Bradfield's retirement, the uncertainty of the lesser charges, or simply the momentum of a large multi-agency investigation that had expended much time and resources.

What is clear is that Downey Police's stated reasons for conducting the surveillance operation-to investigate conspiracy and protect the safety of the witness-makes no sense where the supposed "middleman" and "hit man" were both police agents and no other conspirators besides Valdez Junior were under investigation. Subsequent legal strategies should highlight this conclusion and focus on the conduct of Downey Police, FBI agents, and the prosecution.