by Jordan Green
A federal judge set Oct. 15 as a trial date for at least 10 members of the North Carolina Latin Kings on racketeering charges as the chained and shackled defendants, their lawyers and prosecutors crowded into a federal courtroom in Winston-Salem on Monday.
US District Court Judge James A. Beaty Jr. also scheduled a hearing on a motion to suppress filed on behalf of defendant Jorge Cornell for Aug. 28. Michael Patrick, Cornell’s lawyer, argued that the court should suppress evidence seized by law enforcement in a 2007 search of a residence where Latin Kings were staying and in a 2010 traffic stop involving two members of the group.
The motion argues that an affidavit by Guilford County Sheriff’s Office Detective John Lowes in support of a search warrant was insufficient to establish probable cause. The motion quotes the affidavit as saying that “a confidential source [said] that they have witnessed persons from 2809 Keeler St partaking in drug activity outside of their business,” and argues that “the affidavit provides no information about the reliability of the source. It does not identify these persons. The affidavit provides no link between the residence and the drug activity.”
Patrick also said that a search of a van rented by Cornell but occupied by defendants Wesley Williams and Richard Robinson was conducted without a warrant.
The motion notes that “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 a response filed on Monday the government did not directly address the question raised about the reliability of the detective’s source or whether drug activity outside of a residence should be used to infer illegal activity inside. And the government argued that Cornell lacks standing to challenge the vehicle stop, considering that he was not in the vehicle.
Lawyers for the defendants have also attempted to narrow the scope of the indictment by arguing that some of the overt facts presented by the government as part of an alleged conspiracy to further a corrupt endeavor are protected by the First Amendment, such as running for public office, holding press conferences and criticizing the police. The lawyers also argue that parts of the indictment are “duplicitous” because they include acts by defendants after they had been expelled from the organization.
Patrick has complained in recent months that the government “is significantly hampering the ability of counsel to confer with the clients about the case.” Lawyers for the defendants have had to travel three hours to visit their clients in a jail in Farmville, Va., are not allowed to leave discovery materials with the defendants and have struggled to make sense of thousands of pages of redacted transcripts of conversations that were secretly recorded by the government.
Assistant US Attorney Robert AJ Lang said he concurred with the judge that at some point releasing un-redacted transcripts would be appropriate, but did not specify a time. He said the government holds concerns about witness intimidation “all the way up to trial.”
The hearing also addressed a motion for protective order filed by the government. The motion was filed under seal and its purpose remains unclear, but filings by Patrick have alluded to allegations of “witness intimidation” and unspecified threats “made on the internet concerning the loyalty” of three co-defendants who had pleaded guilty.
Detective Lowes read from the website ALKQNsupport.com: “We have reached an unfortunate but not altogether unexpected moment in our support work.
Three of the seven Kings we all have been supporting for the past six months — Charles Moore, Luis Rosa and Richard Robinson — have all 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 continue to support these three men, financially, emotionally or otherwise.”
No plea agreements have been filed in court on behalf of Moore, Rosa and Robinson, but they did not appear in court with the other defendants.
Lowes admitted under questioning by Patrick that no direct threats were made to individuals through the internet posting and said he was aware of no communication by anyone outside of the prison system asking anyone to harm the three cooperating defendants.
“We understand that it’s a group of anarchists in the community,” Lowes said, adding that his information came from other law enforcement individuals.
Michael Driver, the lawyer for defendant Williams, drew Lowes’ attention to the second paragraph of the post.
“They’re almost portrayed in a sympathetic light,” Driver said. Lowes indicated in his response that he thought that Driver had made a fair characterization.
Daniel Carson, a member of the support committee, said after the hearing that the information about Moore, Rosa and Robinson’s plans to plea out “did not come from the attorney. We in the support group do not have direct conversations with the lawyers the way that the Feds are implying.” He declined to disclose the group’s source.
The hearing also addressed a motion to produce evidence filed by Patrick and other defense attorneys. Patrick made a request to the US Justice Department’s civil rights section for documents related to an investigation of a 2010 Title VI civil rights complaint filed against the Greensboro Police Department on behalf of the Latin Kings. The Kings have accused the police department of discrimination by targeting and harassing Latinos. Patrick said he has received a letter from the civil rights section indicating that the agency did not investigate the complaint.
The Rev. Nelson Johnson, who described himself as a friend of Cornell’s during a press conference last week, said a group of Greensboro residents traveled by bus to meet with officials at the Justice Department in late 2010. In response, the Justice Department sent a member of its community relations service to Greensboro to discretely gather information.
“We were received so enthusiastically in 2010, and when there was no movement, the national NAACP facilitated a conference call,” Johnson said. “It was as if they acted like they didn’t know much about our complaint.”
Anita Earls, executive director of the Durham-based Southern Coalition for Social Justice who filed the complaint on behalf of the Kings, said she has received no notification from the civil rights section indicating any deficiencies in the complaint or other reasons why it was not investigated.
“If you read their own regulations and their manuals, there’s nothing that suggests that they would do absolutely nothing,” said Earls, who headed the civil rights section from 1998 to 2000 under President Clinton. “The manual says that if they decide that they are not going to investigate, they send something called a ‘notification of closure.’” A spokesman said the Justice Department had no comment beyond having received the complaint.
The defense also sought a court order to make the government turn over exculpatory evidence relevant to an allegation that the defendants committed extortion against an employee at Hello Wireless in Greensboro’s Four Seasons Mall.
The motion reads, “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).... Upon information and belief, during the state prosecution, the prosecution and the 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.”
Guilford County Assistant District Attorney Howard Neumann confirmed to YES! Weekly in 2008 that the state dropped charges against Cornell and Russell Kilfoil, in part, because of surveillance that established that Esparza made purchases with the embezzled money, in contradiction to her claim that Latin Kings members threatened her if she did not hand over the money. The defense attorneys indicated they anticipate the government will call Esparza to testify.
Leshia M. Lee-Dixon, a trial attorney for the government, told the defense attorneys in a letter in July: “Receipts involving Alma Esparza are exhibits to the grand jury and will be released when other grand jury items are released. To date, law enforcement is not aware of any store videos that depict Esparza making purchases.”
“I’ve explained that if the evidence is exculpatory, the government is required to turn it over,” Judge Beaty said. Turning to the prosecutor, he added, “Do you understand that, Mr. Lang?”