Manufactured Conviction: Why Tito Valdez Senior Should be Free
by
Jesse McGowan, August 2003
Brief Biography of Valdez Senior
Tito David Valdez Senior was born in New Mexico, 1940. After graduating from
High School in 1957, he moved to California to work for Hughes Aircraft for
three years and then for Rockwell International for thirty-three years in Downey,
California. Valdez Senior worked mostly on the Space Program as a precision
mechanic. While working for Rockwell in 1960, he was drafted into the army and
served in Arizona and West Germany. In 1963, Valdez Senior became a veteran
and given an Honorable Discharge.
In 1967, he married Maria Valdez and eventually bought a house in Downey, had two sons, and continued working for Rockwell International for the next twenty-six years. In 1993, just a few years before retirement, he was arrested with his older son, David Valdez Junior, for solicitation and conspiracy to commit murder. Currently, Valdez Senior is incarcerated at the California Medical Facility in V acaville, California as a result of a serious injury he incurred while awaiting trial in a Los Angeles County Jail.
Overview
of the Facts
On the night of April 27, 1993 at approximately 11:30 pm, Valdez Junior, 23,
viewed a recorded episode of his public access television show inside of his
bedroom with a girl he had recently met. The girl had called Junior twice before
by telephone, inquiring about a job on his show and indicated that she had friends
that were on the program they were viewing. According to the girl, they were
in the room for approximately one and a half hours. According to Valdez Senior
and his other son, Steven, who were watching television in the living room situated
next door, Junior and the girl emerged from the room after 10 to 12 minutes.
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 $25,000 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 a sting operation allegedly to undercover a plot by Valdez Junior to have the girl intimidated into not testifying for a price of $100 to $200 (Transcripts 494). According to police, another dance party promoter who happened to have ties with the FBI heard about a plan from Valdez Junior during the preceding months. Valdez Senior was not suspected of any wrongdoing at this time.
On December 2, 1993 Jesse James, the party promoter who would later admit to being an FBI informant named Manuel Guerra, 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 [1] ." Guerra said to Junior, "You tell me what you want to do." Junior replied "Intimidation, I don't know bro [2] ." Subsequently, Junior discussed with the informant and undercover officer "whacking" the girl.
Then Valdez Senior and his other son, Steven, arrived with hamburgers for Junior. The informant asked Junior to obtain a gun from his father. 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. According to Junior and Senior, Jesse James (Guerra's fake name) was to carry it in front of the club to cut down the costs of hiring an armed security guard, of which they usually hired. Senior told Junior that he lent the gun to a relative but Guerra and Junior were persistent. Then Senior went across the street where he knew the people sold all kinds of items, similar to a pawnshop. He returned to the house with a gun dealer who had a .38 caliber handgun. 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 [3] ."
Then Valdez Junior, Guerra, and the undercover officer drove away in the officer's car. On the request of the gun dealer, Valdez Senior told the undercover officer to put the gun in the trunk so there would be no problem if they were pulled over. Halfway down the street, a team of Downey Police 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 often-inconsistent testimony of the girl, and most importantly, their rebuttal witness; the undercover Downey Police Officer involved in the FBI-aided sting operation. The officer was allowed to tell the jury that Valdez Junior and Senior had recently been arrested on charges of solicitation and conspiracy to kill the girl [4] . 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. The remainder of this paper deals with problems in the conspiracy trial that have resulted in the wrong verdict. I have focused on the exculpatory evidence and events as they relate to Valdez Senior, not because I believe Junior is any less innocent, but because his circumstances produce an even clearer miscarriage of justice with better chances for post-conviction relief.
Lack of
Evidence, Patterns of Falsification
The facts are clear. They're simple. That's probably why I only asked 4 questions
in the last 3 weeks. You probably thought that when I was sitting there I didn't
know what I was doing.
-Attorney for Valdez Senior during closing arguments (Transcripts 1449)
Downey Police and the prosecution used the concealed wiretap to argue that Valdez
Senior was involved in a plan to commit murder. However, Valdez Senior's statements
on the recording are limited to; "Es trienta y ocho [5] ," "thirty-eight
special [6] ," "forty-one," and "si, si, a mi [7] ".
Every one of the statements relate to the purchasing of a gun Valdez Senior
maintains was being bought for security purposes for his son. No statement,
even implicitly, mentioned the girl or Junior's legal predicament. Numerous
Spanish statements were captured on the wiretap relating to the purchase of
the gun. Many of the statements are not discernable even to one fluent in the
language. The jury requested a translation, however, the court denied it without
a reason [8] . One juror has indicated that his guilty decision was based on
these ambiguous Spanish statements. In a telephone interview, Calvin Nakamoto
stated,
Yea, I didn't feel
comfortable with that case. I felt sorry for the young man; he was very angry
and you say things when you're angry, it doesn't mean you're really going to
shoot the person. The thing about that case, I don't understand Spanish and
I had to go off of what someone else said it meant. I don't usually like taking
someone else's word for those kinds of things [9] .
The prosecutor took advantage of the wiretap's poor quality. He called his star
witness (Guerra, the FBI informant) and played the tape to key points, stopping
it each time to ask him to fill in the gaps. On many occasions, Guerra's version
of the events contradicted the testimony of the Downey undercover police officer
[10] . When the prosecutor asked the informant if there was any discussion with
Junior that would indicate Senior was involved in a plan to hurt the girl, the
informant answered in the affirmative. When asked if it was captured on the
tape, the informant replied, "Ah, from the recording, since it is very
poor, I can just hear myself asking David if it was cool in front of his dad
(Transcripts 324)." Poor quality was not the wiretap's only problem. A
cursory listening reveals that the sounds cut in and out. One can also hear
the voices of law enforcement officers imposed over conversations or what Officer
Heotker called, "bleedover from a conversation that was going on in the
van over the wire (Transcripts 682)." Audio-Forensic expert, Norman Perle,
examined a copy. His conclusions went much further. He stated in his 1994 declaration:
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…Side
2 ends in a suspicious manner in that one hears the audio from the CI [confidential
informant] outside. But, 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 [11] .
Perle was never called to testify for the defense and his declaration is completely
absent from the record. Perle recommended that the original recording also be
examined to "establish an opinion as to the integrity and authenticity
of the evidence." To this date, Perle's recommendation has never been carried
out. Despite the poor quality, lack of substance, and questionable authenticity
of the only piece of physical evidence against Valdez Senior, the prosecutor
needed his conviction. Without it, the case would have fallen apart for Junior
as well since conspiracy law requires an agreement between two or more people
not pretending to conspire [12] . From the prosecution's perspective, it was
all or nothing.
The Prosecution
Did Not Argue from Evidence
The few intelligible statements made by Valdez Senior on the wiretap were not
sufficient for a conviction. So the prosecution made some up. He told the jury
that Valdez Senior was discussing hollow point bullets, hiding guns, and killing
power. However, Senior never discussed these issues. In fact, the FBI informant
(Guerra) brought up all of these issues in the form of questions to the gun
dealer [13] . In his closing arguments, the prosecutor went further with baseless
claims. Not only was Senior involved, he argued, he was the "ringleader."
The prosecutor 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). He added, "I suspect Senior wasn't
thinking Uzi for security" (Transcripts 1461). Again, only Guerra and the
gun dealer talked about an Uzi.
Absence
of any Kind of Defense
Perhaps more outrageous than the false statements made by the prosecutor was
the fact that the defense-accept on the accusation of Senior being the ringleader-did
nothing to rebut them. He called no witnesses, conducted no investigation, and
pressed for no discovery of evidence. On record, Mr. Leonard was quite up front
about his inaction. He told the jury:
What did Mr. Bozanich
[the prosecutor] say? He says, 'You know, Mr. Leonard, he's just sort of hanging
back over there laying down, wondering what he's doing here.' He's exactly right.
For three weeks I have been here listening to evidence, and I'm trying to say
to myself, what am I doing here. Because there's no evidence that can convict
Mr. Valdez Sr. (Transcripts, 1442).
To make matters worse, Valdez Senior was physically unable to testify and participate
in his own defense due to a serious head injury he suffered from an accidental
fall at Wayside County Jail. The injury induced a deteriorating mental state,
the loss of 80 lbs, lost control of bowel movements, and confinement to a wheel
chair. Dr. Coodley, a court-appointed psychiatrist who examined Senior on three
occasions, found him incompetent to stand trial. He told the court:
I would say that
my opinion today is that he is not competent to stand trial…It's based
on a number of different things. During both interviews, or all 3 interviews,
rather, that I had with him, he demonstrated an increasing incapacity to function,
to understand the nature and purpose of the proceedings taken against him (Transcripts
A31).
Oddly, the court ruled that the presumption of competency had not been overcome
by the testimony of Dr. Coodley-apparently agreeing with the prosecution that
it was a "really goofy opinion" [14].
The Star
Prosecution Witness: Completely Discredited
When you have dirty deeds, you don't get clean people…He has his warts.
--The Prosecution commenting on his star witness (Transcripts 1320)
Neither the testimony of the undercover officer, nor the wiretap-such as it
was-connected Valdez Senior to a plan to obstruct justice. Thus, the prosecutor
relied on the testimony of the informant, Manuel Guerra. In addition to the
aforementioned testimony of Guerra that Junior told him his Dad "was cool
with it," Guerra made other claims that implied Senior knew of a conspiracy
plan. He testified that while meeting Valdez Senior when he arrived with hamburgers,
Junior said to his father, "This is the guy I talked to you about."
Then, according to Guerra, the father said, "Cool," and "Okay"
(Transcripts 210). Guerra further testified that he asked Junior about his payment
for the alleged hit in front of Senior. According to Guerra, the father answered
the question, "That would be fine" (Transcripts 420). However, none
of the three verbal exchanges connecting Senior to a conspiracy plan were captured
on the wiretap nor corroborated by any of the other eyewitnesses.
From the start, Manuel Guerra's motives and credibility were in question. In a discovery hearing prompted by Valdez Junior's attorney, Guerra admitted to working as a paid FBI informant on 5 to 10 cases in the past (Transcripts 511). He was very reluctant to answer questions relating to his relationship with the FBI since he had "open cases with the bureau [15] ". Although he denied that he was paid for the current case, the prosecutor had different information. In the same hearing, Bozanich admitted to the court that the lead investigator for the Downey Police, Sgt. Garza, told him that Guerra had been compensated after the fact for the current case by the FBI [16] .
Guerra, an aspiring police officer, took control of the sting operation. Even before becoming involved with the FBI, he participated in the LAPD's Explorer program from ages 13 to 17 and testified to wanting to become a cop (Transcripts 556). The first time Guerra met anyone from Downy Police was the day of the sting operation. He testified that it was his idea to use a "hit man" (Transcripts 550). At the Downey Police station hours before the sting operation, Guerra was given minimal instructions, set up the visit to the Valdez residence with three phone calls about fixing Junior's car [17] , and was allowed to choose which undercover officer would accompany him (Transcripts 567).
Throughout the trial, Junior's Attorney impeached Guerra a number of times.
During trial, Guerra denied ever being compensated for working as an informant but later he admitted to being compensated for his role in past cases [18] . At the preliminary hearing, Guerra said he told FBI Agent Molina about Valdez Junior's alleged plans to intimidate the witness after Molina called to check up on him. During trial, he said he paged Molina the same night he met Valdez Junior outside of a radio studio in Pasadena allegedly for the first time [19] . At the preliminary hearing, Guerra stated that he approached Valdez Junior outside of Club "D" Light to discuss intimidation just days before the sting operation. During trial, he claimed that Valdez Junior had approached him that night [20] . At the preliminary hearing, Guerra said that there had been no discussion about what the gun was to be used for. During trial, he testified that there had been discussion of using the gun to hurt the girl [21] . Finally, at the preliminary hearing, Guerra testified that the gun was first handed from the gun dealer to Junior. During trial, he said he was the first to handle the gun [22] .
Guerra's biggest lies did not surface until after the trial. For example, Guerra testified that he was never arrested, neither as an adult nor a juvenile (Transcripts 134). However, he was arrested for felony property theft [484 (a) over/under $400] in 1990 and again in 1991 for the same crime. The charges were sustained on both occasions [23] . Guerra also testified to being 20 years old during the trial (Transcripts 165). But according to a felony complaint against him, his birthday is April 9, 1970, which means he was in fact 24 years old during the trial [24] .
When the verdict was read on December 21, 1994, Guerra was still not finished with destroying his own credibility. Just a week later, on December 29, 1994, he and an accomplice were arrested and eventually convicted for the crime of car jacking [25] . In light of his prior convictions, his probation officer recommended, "that probation be denied and that defendant be sentenced to a suitable term in state prison" [26] . The FBI informant was given probation.
Conclusion
Mr. Tito Valdez Senior was convicted on the heresy testimony of an FBI informant
thoroughly discredited by concealed felony convictions, evidence of inducements
from the FBI without entrapment instructions, and an extensive list of perjured
testimony. Despite baseless and manufactured claims made by the prosecutor,
the wiretap evidence does not connect Valdez Senior to a plan to commit murder,
intimidation, or any other crime. In that it may suggest the involvement of
Valdez Junior, appropriate entrapment instructions would have cleared him from
the charges since the idea was both created and instigated by an FBI informant
[27] . After more than a decade of illegitimate incarceration and a near-fatal
head injury, Tito Valdez Senior deserves to be reunited with his family immediately.
Many constitutional violations contributed to the guilty verdict. The most obvious include violations of the Sixth Amendment for ineffective assistance of counsel and of the due process clause of the Fifth and Fourteenth Amendments (prosecutorial misconduct in knowingly using perjured testimony and judicial error in allowing Senior to stand trial while determined incompetent by an expert, in disallowing a Spanish translation of the wiretap, and in disallowing entrapment instructions despite Guerra's history as an informant and evidence of inducements from the FBI). All state appeals for Valdez Senior have been unsuccessful most likely because key issues were never raised and the appellate court misstated the facts of the case [28] .
In July of 1999, The Valdez family hired defense attorney, Richard Dangler, to represent Valdez Senior and Junior in federal court. Dangler authored a fairly thorough federal writ of habeas corpus on the behalf of Valdez Senior but filed it 280 days after a one-year statute of limitations imposed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDP). On April 10, 2001 the U.S. Central District Court for California ruled that Senior's federal writ was time-barred.
The federal writ is not dead. Valdez Senior has a good case for overturning the federal time-bar on the principal of equitable tolling, meaning that Senior could not have filed the federal writ on time due to "extraordinary circumstances." These extraordinary circumstances include the fact that the Valdez Family was assured in writing that the federal writs would be filed on time by their attorney [29] , the State Bar of California recently disbarred attorney Leonard Milstien who worked with Dangler on the Valdez case and had possession of Valdez case documents which were confiscated by the State Bar [30] , and finally, attorney Richard Dangler failed to render services outlined in the retainer agreement and intentionally misled the Valdez family about the implications of the time-bar [31] .
There is also hope of getting around the federal time-bar with new evidence. Almost a decade after the trial, discovery-the pre-trial process of fact-finding-has never taken place. Guerra, the two FBI informants involved in the sting, the girl, officer Bradfield [32] , Frankie Bones, and Alex Alverez [33] have never been investigated. Despite Perle's declaration asserting that the wiretap was falsified, the original copy has never been tested. Despite the former juror's statements about feeling uncomfortable about not receiving a Spanish translation, no one has taken his declaration or questioned other jurors on the issue. In this light, the amount of exculpatory evidence for Valdez Senior is quite substantial considering this lack of discovery. With some investigative work, new legal opportunities can open up.
After a decade behind bars, Tito Valdez Senior has never given up hope. He states in a recent letter , "If we had a good lawyer, we could win our case on factual innocence. Since our lawyers have taken a fall, all we want is to go back to court and we believe we have a very good change of winning with the new evidence."
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End Notes
[1] See counter time 06:16 of the WAV audio file.
[2] See counter time 00:48 of the WAV audio file.
[3] See counter time 20:56 of the WAV audio file.
[4] The testimony of the police officer involved in the sting operation was crucial for the prosecution's case in light of no physical evidence and took up one third of the trial transcripts. In a 1995 re-sentencing hearing, Judge Robert W. Armstrong stated:
The officer, who was the so-called hit man who testified in this case actually sealed up Mr. Valdez's fate in this trial. Any chance he had of a jury finding a reasonable doubt was obviously gone as soon as this officer testified that he had tried to kill the prosecution witness or to have her killed, and which was such overwhelming evidence of his guilt, that because as innocent person woudn't take such action, so the jury did take that into consideration.
[5] See counter time 20:43 of the WAV audio file.
[6] See counter time 21:77 of the WAV audio file.
[7] See counter time 23:48 of the WAV audio file.
[8] Jury request #406 is dated December 20, 1994 (the verdict was read the next day). Two questions were hand-written:
1) "Is it permissible for members of the Jury who understand Spanish to translate portions of the wire tape recording which are spoken in Spanish?" and 2) "May we have a court interpreter translate those portions of the tape in Spanish?"
Judge Falcone answered "No" to both questions. The request is totally absent from the record and the Valdez family learned of its existence long after the conviction.
[9] Phone interview of former Jury member, Calvin Nakamoto, by Jesse McGowan. 4:20 pm 01/13/2002
[10] Guerra testified that Valdez Senior handled the gun before giving it to his son (Transcripts 590). However, Officer Charles testified that Senior never handled the gun (Transcripts 743). Guerra also testified that when he was handed the gun, "I looked at it, and I seen some live rounds in there. So I proceeded to open the barrel, and I took out the rounds" (Transcripts 398). However, Officer Charles testified that the gun was never loaded and that obviously no one unloaded the gun in his presence (Transcripts 705).
[11] Perle, Norman I. "Declaration" 11/06/1994 National Audio/Forensic Laboratory, 8357 Shirley Ave. Northridge, CA 91324.
During the trial, Valdez Junior had very limited communication with his attorney who commissioned the audio forensic tests. She did not call Perle to testify and told Junior that they would be better off keeping the wiretap in evidence, ostensibly for its exculpatory qualities.
[12] In a sidebar discussion concerning the issue of granting entrapment instructions, the prosecutor admits to the necessity of convicting Valdez Senior (Transcripts 1262).
Filipi (Junior's attorney): 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.
[13] In his closing arguments, Bozanich stated:
…At no time in all his contacts with the quote, mechanic, unquote, did he at any time bring up a car, a vehicle, a motor problem, or anything like that. Instead he is discussing and participating in conversations about hollow-point bullets. What are hollow-point bullets? You're talking killing power. I don't have to dwell on it (Transcripts 1373).
…Senior was discussing with Jesse James [Guerra] and the gun dealer the size of the gun that was to be bought, that is was easy to hide, it's killing power as well as other guns, a .38 and an Uzi (Transcripts 1462).
There is nothing on the wiretap, nor on record that mentions "killing power" or "hollow-point bullets. " Guerra does ask the gun dealer if the rounds are explosive and the gun dealer replies "no" (WAV file 24:01). On the issue of "hiding guns," again this reference can only be attributed to Guerra when he said, "That shit's cool. You can sneak it in the pockets" (WAV file 23:29). Finally, only Guerra and the gun dealer talked about an Uzi. Guerra said that they sell for $500 and even more in Mexico (WAV file 19:51).
[14] Dr. Coodley, whose testimony spans pages A33 to A66, noted many signs indicating a severely declining mental state. For example, Valdez Senior told him that he hadn't had a bowel movement in three months, didn't know why he was in jail, and couldn't perform simple arithmetic. It is not clear why Judge Falcone forced the trial to proceed despite Dr. Coodley's expert opinion. The prosecutor argued:
There's been insufficient evidence to substantiate a finding of incompetence. 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).
However, Dr. Coodley's evidence was well documented and while being cross-examined by Bozanich, he informed the court:
I'm appointed by the court. I have no vested interest one way or the other whether the individual- whether I'm asked by the defense or I'm asked by the prosecution. I'll give the same answer because that's the way I handle my business (Transcripts A63).
[15] Guerra's testimony suggests that he had a very extensive relationship with the FBI and wanted to maintain it:
Filipi: In this case you've gone much further than just providing some anonymous information, isn't that right?
Guerra: Correct.
Filipi: Did you, however, as this was occurring, think of ways of perhaps you could avoid ever getting put in a situation where you would indeed be a witness?
Guerra: Yes, I did.
Filipi: Why were you concerned about perhaps having to become a witness?
Guerra: For the simple reason that there was some open cases that I have with the Bureau, and the safety factor came into play. I fear for the safety and the safety of my family.
Filipi: In any way, once you were brought forward and once you began to testify in this case, did that in effect blow your cover?
Guerra: Pretty much, yes, it did.
Filipi: Did that have an impact on investigations that you had been involved in?
Guerra: Yes (Transcripts 608, 609).
[16] The prosecutor informed the court that he had heard of Guerra's FBI compensation from Downey Police Sgt. Steve Garza only after the court demanded the information (Transcripts 147-149). The disclosure prompted a 402 Discovery Hearing into Guerra's relationship with law enforcement.
[17] From the Downey Police Station, Guerra made three phone calls to Valdez Junior on the day of the sting.
The first call occurred at approximately 4 pm (Transcripts 706). According to Guerra and Officer Carl Charles who was monitoring the call, there was a discussion about getting a mechanic to fix Junior's car. There was also talk of "tools" and "spark plugs." Guerra testified that "mechanic" was code for hit man, "tools" for gun, and "spark plugs" for bullets (Transcripts 571). Officer Carl Charles testified that he had never before heard "tools" to mean gun and "spark plugs" to mean bullets (Transcripts 690). Also worth noting is that Officer Charles wrote down "wrench" in his police report concerning this phone call. However, "wrench" was never mentioned in the taped conversation.
The second call occurred at approximately 5 pm (Transcripts 710). In this call, Guerra asked Valdez Junior for directions to his house. The third call occurred at approximately 5:30 pm (Transcripts 710) and this was just Guerra telling Junior that they were delayed and they would arrive shortly. They arrived at the Valdez residence at approximately 7:15 pm ( Transcripts 762).
[18] In the 402 Discovery Hearing, Guerra testified to not being paid in other cases:
Guerra: I mean you're trying to seem like if I'm getting paid, or I do this for a career or a living. No, I don't (Transcripts 138).
However, he later admitted to being paid:
Court: I'm going to have you answer that, just a yes or no as to any other cases. Guerra: Other cases, yes (Transcripts 142).
[19] At the preliminary hearing, Guerra testified that agent Molina of the FBI called to check up on him. Then, according to him, he informed agent Molina that he had met Valdez Junior for the first time outside of his radio studio in Pasadena and Valdez Junior allegedly wanted to intimidate the witness. Guerra made no mention of paging agent Molina (Transcripts 500). But during trial, Guerra testified that he paged agent Molina the same night he had a conversation with Valdez Junior in Pasadena (Transcripts 499). He also testified that he had known agent Molina for approximately two years and had several contacts at the FBI (Transcripts 500).
[20] On November 28, 1993 (four days prior to the sting), Guerra spoke with Valdez Junior outside of Club "D" Light in Hollywood. According to Guerra, this was only the second time he met Valdez Junior. During trial, Guerra testified:
Filipi: And when you saw David at the club, David approached you, correct, and said, "Let's go outside and talk." Guerra: That's correct (Transcripts 545).
But at the preliminary hearing, Guerra testified:
Amescua: So you approached him and said, "David, let's go outside and talk."
Guerra: I asked him if he wanted to talk.
Amescua: But you approached him, right?
Guerra: I asked him if he wanted to talk (Transcripts 546).
Guerra finally admitted to initiating the conversation during trial (Transcripts 548).
[21] During trial, Guerra testified:
Filipi: When the five of you were all in the room…was there any discussion about what the gun was going to be used for? Guerra: Yes, there was (Transcripts 589-590).
But during the preliminary hearing, Guerra stated:
Amescua: Was there any discussion while the 5 of you were present in terms of what the gun was going to be used for? Guerra: No, there was no conversation (Transcripts 590).
[22] At the preliminary hearing, Guerra stated that the gun was first handed to Valdez Junior, then it was placed on the table, then the gun dealer grabbed it (Transcripts 591). But during trial, Guerra stated that the gun was first handed to Valdez Senior, then to the undercover Downey Police Officer, and finally to himself (Transcripts 590). Worth noting is that Guerra's first version included just one other person besides the gun dealer handling the gun while the second version included three other people handling the gun. According to Officer Carl Charles, V aldez Senior never handled the gun (Transcripts 743).
[23] According to Guerra's arrest record [JAI CII, CLETS (2/2/95)], he was charged by LAPD/RAMPART DIV for theft of personal property (over/under $400) on 7/25/90. As a minor the charges were sustained and he was placed on 654 WIC supervision. Guerra was again charged with theft of personal property on 7/1/91, this time by Alhambra Police. The charges were again sustained. During the original trial, Guerra's rap sheet was kept hidden. Even in Valdez Senior's federal writ of habeas corpus, which was time-barred, his attorney left out these specific charges, indicating only that Guerra "probably had a rap sheet."
[24] Felony complaint, case #BA106893 in the Municipal Court of Los Angeles Judicial District included two counts against Manuel Del Jesus Guerra and Mario Alberto Macias, count one: 215(A) PC (CARJACKING), count two: 211 PC (SECOND DEGREE ROBERY).
[25] Ibid.
[26] Nidoff, Barry J. Probation Officer Defendant: Manuel Del Jesus Guerra, CA Sup. Ct. of Los Angeles, JAI, CII, CLETS (2/2/1995)
[27] Downey Police had a clear motive to entrap Valdez Junior and remove him from the community. At the time, Valdez Junior was in the process of securing a 20,000 square-foot roller-skating rink to be reserved for huge Rave parties as Club Jump. The regular events would have brought thousands of non-white youths into the community from the surrounding areas. Downey Police were openly opposed to the plan along with a small group of residents. The Downey City Council granted Valdez Junior a zoning permit for Club Jump, however, Downey Police said they had to do an FBI background check before the permit was granted. When Junior was charged with rape, Downey Police said they could not grant the permit due to the allegations. These, along with many other events, suggest that Downey Police worked with the FBI in manufacturing and prosecuting a crime that would remove Valdez Junior from the area.
[28] In affirming the conviction in the Second Appellate District Court of the State of California, Division Four (July 2, 1996), Judge J. Hastings misstates key facts of the case. He writes:
In response to Guerra's question Junior affirmed it was okay for them to converse freely in front of Senior, adding Senior was the first person Junior told (2).
The only record of this was Guerra's heresy testimony. It was not on the wiretap, nor corroborated by any of the other witnesses.
In refusing to give the proffered entrapment instructions the trial court expressly found that Guerra was not a police agent. The record supports this finding. Although he cooperated with the police. Guerra was not employed by the police and did not act at their instigation (8).
Actually the record supports the finding that Guerra was a very experienced FBI informant with open cases he did not want to jeopardize and 5-10 past cases (Transcripts 511). The record also indicates that he was compensated by the FBI for the current case (Transcripts 147-149).
Also, his participation in the crimes did not rise to the requisite level of persuasion, pressure and cajoling necessary on the part of law enforcement agents necessary to sustain an entrapment defense (8).
Guerra's participation certainly did rise to the requisite level of persuasion outlined in People v. McIntire (1979) 23 Cal. 3d because A) Guerra came up the idea to use a fake hit man (Transcripts 550), B) Guerra approached Valdez Junior to talk about an intimidation plan at Club "D" Light days before the sting (Transcripts 546), C) Guerra called Valdez Junior three times to set up the sting operation, and D) Guerra continually pressured Valdez Junior to buy a gun (audio file 20:56).
[29] A letter from Richard Dangler addressed to Valdez Senior dated October 19, 1999 begins:
Thank you and Maria for sending the fee for federal habeas corpus in the United States District Court up to and through the United States Supreme Court as necessary. Of course, we are commencing work on your case immediately. Our goal is to win…when we both think the writ is as complete as possible, we will promptly file it with the court.
[30] Navarro, Luz The State Bar of California (February 10, 2003) 1149 South Hill Street, Los Angeles, CA 90015-2299
One of the items in Milstein's possession that was returned to Valdez Junior was a letter by Richard Dangler written to Milstein. It suggests that Milstein had documents he needed in order to complete the federal writs:
I have been contacted by Tito David Valdez, Jr., who has informed me that he sent all his briefs to your office for your reference.
We are in the process of preparing his federal writ of habeas corpus and have discovered that we do not have a copy of the complete [California] Supreme Court writ. It is possible that when my former clerk returned the state court writs to Tito, he did not keep copies of the writs for our file…I would most certainly appreciate it if you could send me only the Supreme Court writ and the separate volume of exhibits…
[31] In a letter addressed to Valdez Senior by Richard Dangler dated September 20, 2001, he informed Senior of the time-bar issue but took no responsibility for the error. Instead he claimed that "we do not think we sent the case out late at all," and that the court was just looking for a convenient way to avoid hearing the case on its merits. Please see Critique of Letter by Richard Dangler, Jesse McGowan, 2002
[32] Just one week away from retirement, Downey Police Detective Bradfield played a leading role in the sting operation. He may have wanted to end his career with a big prosecution. In an October 18, 1997 declaration by Valdez Junior from Tehachapi State Prison, Junior described his interaction with Bradfield at the Downey Police Station December 2, 1993:
Bradfield then placed me in a room and told me in front of Garza, "You son of a bitch, don't you understand. I paid for this to happen. You fucked with us, now we're going to fuck with you. Why did you have to get your dad involved in this?" He then read me MIRANDA rights and placed me under arrest for conspiracy to commit murder.
According to Maria Valdez, Bradfield approached her at the courthouse during the trial and said, "Do you play poker" (Interview by the author, July 7, 2002).
[33] Valdez Junior stated in his October 18, 1997 declaration:
Around May 1993, I was approached by an ex-con named Alex Alverex who worked for West Coast Cellular in Venice, California. He had tattoos all over his body and claimed to be a Mexican Mafia member. He was "taxing" many nightclubs and was interested in investing money in my show. I refused, however, I invested with him on "900 telephone services." Alex said that it's hard to win a rape trial and that he could arrange for someone to scare the girl. I didn't want to do that so I just laughed at his remark…Around September 1993, I was introduced to a promoter named Frankie Bones who "controlled" the party crowd from East LA. I decided to invest money with him on a November grand opening of a Hollywood nightclub [Club "D" Light]. Frankie now stated that it's hard to win rape trials and that he wanted to introduce me to his business partner Jesse James a.k.a. Manuel Jesus Guerra who could scare the girl...In October 1993, I landed a job as host of a weekly radio show featuring culture of the nationwide RAVE party scene. Frankie and Jesse attended weekly to promote their parties on the air. Each time, Jesse would hint that I had a lot to lose and that this girl must be intimidated…On November 28, 1993, at what would be my last radio show, Frankie, Jesse, Alex Alverez, and a friend of Alex all showed up. Jesse and Alex on several occasions continued to state that I would lose in my upcoming trial on December 15, 1993, if I didn't take action.
Worth noting is the fact that Jesse James [Guerra], Alex Alverez, and Frankie Bones all urged V aldez Junior to do something about the girl, all came into contact with Junior roughly during the same time, and all worked at West Coast Cellular in Venice, California. Alex Alverez and Frankie Bones did not testify at the trial.