Prosecutor Uses Defense’s Gang Expert To Benefit Case, Defense Proposes Reasonable Doubt – It was a day of one powerful closing after the other on Thursday, and continuing on Friday, in the state’s case of Operation Red Sash. In 2012, the undercover investigation concluded. The year-long operation would net around $900 dollars’ worth of methamphetamine sales, four guns, no cash, no paraphernalia, and 18 arrests. Of those 18, only 11 were charged. The first of three separate trials ended Friday and the jurors were sent to deliberate.
DDA Robin Johnson began by going over the evidence on each individual defendant. She told jurors how this case began as a drug case and later, after a full investigation with hours of surveillance, it led to gang members of the notorious Broderick Boys. She said the defendants were all known members and did exactly what gang expert, Mark Harrison, said they do to further their gang status. She stated, “You heard the defense’s own witness, Harrison, say that there is no coincidence in the way members operate.” Johnson said, “You heard Agent Richter’s testimony about each sale he set up with defendant Wayne Lewis, and you heard from other testimony that he was getting the drugs from fellow gang members.” Johnson stated the defendants all knew each other and were from the Broderick area.
Johnson stated, “Now, I know the people have the burden of proving these crimes and I know the people must prove they were done to benefit gangs and if you go back and read testimony of YONET Agents, Gary Richter and Ryan Bellamy, you will know the defendants were all friends and all affiliated with the Broderick Boys.” She said that the defense wants you to believe they were gang drop outs. She said, “If they were drop outs, why did they go back to doing exactly what they had done before some of them went to prison, they went back to associating with people of the gang, and if you wanted to stay clean and out of trouble, you don’t go back to that life.” She said even though they claim they were not Broderick Boys anymore, the ex-members usually go to other gangs like the Northern Riders when they drop out in prison. She stated the investigation entailed all the defendants and they conspired to sell drugs for the benefit of a gang.
DDA Johnson said the evidence shows they conspired to commit the drug sales and with each sale, it was done between people who were known as the Broderick Boys. She said, “We know Lewis had to contact Butcher to bring the drugs to him to sell to Agent Richter and we know he was in the car Richter described as being the silver Lexus, so we know that Lewis had to call him.” “Richter described the defendant who drove the car as a Hispanic male with a faded haircut, wearing a black and white checkered shirt, but he told you he was not sure what was on the side of his face, whether it was a birthmark or tattoo,” Johnson stated. “Again, it’s no coincidence that the transactions happened the way they did, it’s the way things operate, as you heard Harrison say.” She said, “You can go back to each witnesses’ testimony with the transcripts, look at all the photos of the defendants’ tattoos representing gang membership and see how each defendant knew each other, had to contact each other to make the sales with YONET agents.”
Johnson asked the jurors to find the defendants guilty of all charges and guilty of the gang enhancements.
Defense Attorney J. Toney began his closing with a story about his trip to Arizona. He gave an example of how, if a man who works in a bar sells a beer to someone who is outside of the bar, is he liable for benefiting the bar? Toney stated, “I don’t think so, and this is what this case is like.” He said, “My client was a known addict, an addict who needed to make some extra money to feed his own addiction and has been through the process of becoming a non-member of a gang.” Toney stated, “He has no tattoos, no pictures of him throwing gang signs.” He said, “Lewis went to his friends in Broderick and family members to get the drugs to sell to Richter because he already knew them but it had nothing to do with the fact that they may have been a gang member or ex-member.” Toney said, “And that is what you do.”
He ended with a comment about how government comes first in a case like this and it is the first thing to be satisfied. But he asked the jurors to find his client not guilty of gang charges.
Defense Attorney Clark Head, defending Guillermo Rosales, began with the statement, “I want to thank you all for being here, all 12 of you, and tell you I have always liked the number 12. It reminds me of the 12 Apostles, and the 12 tribes of Israel.” Clark went on to say, “Ladies and gentlemen, there is no proof of my client with drugs, or weapons, or doing any sales. What you have is him being at one of the transactions between Agent Richter and another defendant.” But the evidence only shows that his client was seen in the car waiting for the deal to take place. He said that “the prosecution would like you to believe that he went to show force and be a lookout for his friend during the transaction,” but, he stated, “that is just not true.” He said during the search warrants of his residence, they found nothing. He said, “And look at these pictures the prosecution is saying ties the defendants together, look at the age of Rosales, it is clear these photos are not recent.” Clark said Rosales’ dad has had cancer and he has helped take care of him while raising his own children too. He said, “This case is straight bunk, just like to the dope sold to Richter by Lewis, and they really have nothing tying him to any gang-related activity.”
“I ask you to find my client not guilty,” Clark added.
Defense for defendant Esiquiel Butcher, Dan Olsen, began laying out the facts of the prosecution’s case and how it raised questions. He went into the testimony of Agent Richter and how, before a break in testimony, he and Detective Herrera had talked in the hall. Olsen said, “Richter never mentioned the birthmark or tattoo on Butcher’s face, not in the Grand Jury, and not in his testimony before the morning break, but when he came back to the stand, he was able to remember the tattoo.” He stated, “It was not written in any of his reports, nor was it mentioned by Agent Slator or in any of her written reports in this case.” Olsen told jurors it wasn’t until a year or so later the reports were even written in this case so it would be difficult to recall everything. He stated, “And the shirt identified by Agent Richter that Butcher had on that eve, well, there is no way you could tell from the distance Richter stood, even had checkered black and white, in fact, you would have to be very close to see my shirt has stripes, so how can that be accurate?” He said, “And the car he was seen driving, the silver Lexus with the paper plates, had 20 inch rims on it that not one person noticed and thought to put in their report, the contrast of those silver rims against the Gold color Lexus, agents pulled over later, would have been a contrast, yet not one person who has been trained to notice details and put into a report, did that.”
Olsen said, “The tattoos on the ears of Butcher, a devil on one ear and an angel on the other, had no falling stars around them as usual gang members have representing what gang they are in.” He said, “And the idea that Butcher would go through a year-long process to become a drop out, staying out of prison, and a trustee in jail just to come out and go back to being in a gang is just not true.” It would pose a safety risk once he is out, he said. He said Det. Herrera said he was not present on a surveillance of the defendants and then switched his story once on the stand, as he now claims he recalled he was there. Olsen pointed out that Butcher fit the picture for what law enforcement was looking for and said, “There is no solid proof his car was at the one transaction that agents are tying him to, and Richter could not say much more than a vague description of the defendant, Hispanic male with a faded haircut, about 25 years old, well, there are a lot of people who fit that description, even here in the courtroom if you look around.”
Olsen declared, “He is just not guilty.”
Last of the defense was John Brennan, attorney for Robert Montoya. John began with, “Ladies and Gentlemen, I am not going to stand up here and tell you that my client is innocent, because he is guilty of selling meth and we know that but is it tied to gang activity or to promote it? that part is just pure ridiculous..” Brennan, turning to point to the defendants, “Look at these defendants, they are not the smartest people in the world, they have done bad things and they live in Broderick, but is this a gang case because a couple of them sold to undercover agents? No..” Brennan stated boldly, “And don’t get me wrong, I live in West Sacramento, I appreciate law enforcement cleaning up the streets, I know they were doing their job and I want them to.”
“But this case is just ridiculous, it started out being about a drug bust and it is still nothing but that.” He said, “And yes, were there pictures of my client’s child flashing gang signs, yes, and yes, it was stupid, but that is still not enough to make this about promoting gang activity or the Broderick Boys,” Brennan stated.
He said, “You know we have had girl scout cookies at our house this last weekend and we had people coming for short stays, to pick them up and leave, does this make things suspicious, like prosecution is trying to say about one of the residences of another defendants house when he had short stay visitors?” “But again, I am not telling you my client is innocent, he sold drugs to undercover agents, he is guilty of that charge and we already know this, but was he an active gang member, well, I am not going to say he wasn’t, what I can say is that he and the defendants are friends, they are all from Broderick, some having tattoos, some in photos but nothing really shows that the small amount of drugs sold were tied to being a part of gang activity, to further promote the Broderick Boys or Northern Riders as said by DDA.”
“There is no hierarchy found, there is no middle man, nothing, nothing…it is utterly ridiculous! Ridiculous!” exclaimed Brennan.
Brennan said in order to convict of this being related to the furthering of a gang, there are elements that must be met and they were simply not met. He stated, “This is just what it started out to be, just a drug bust with not a whole lot of drugs in a year-long investigation that took hours of manpower and a lot of money to do.” He stated, “We have no phone records that talk about drug deals, no text messages and if prosecution had any we would have seen those. We have a little amount of drugs found, 15 grams of meth, worth 900 dollars, and four weapons, one of which Agent Bellamy said he saw on one of the defendants but had little description of … does this look like an organized plan? It’s pretty ridiculous..” Brennan also mentioned that none of the baggies that had drugs in them were ever tested for DNA which could have proved where it came from before it was sold to YONET Agents. “DDA wants you to believe these people were in gangs, went to prison, got de-activated from the gang, and then once back on the streets, were right back in the gang again, where is their safety?”
He ended with, “My client is guilty for sales, but there is just no proof of this being a part of a gang activity, in fact none of these defendants here are guilty of the gang-related charges but you must decide without a doubt, with an abiding conviction they are guilty and I just do not believe you can do that.”
DDA Robin Johnson in her rebuttal touched on the statements about Det. Herrera and Agent Gary Richter talking in the hall. Johnson stated, “You heard Richter say he saw something on Butcher’s face, he just wasn’t able to make out what it was, and he said that. And we know Lewis had to have called Butcher to bring the drugs to him because he showed up in the Lexus to meet him and give him the dope to sell to Richter.” She said, “Defense would have you believe that agents just pulled his name out of nowhere, well, they didn’t, they watched him as they knew he was affiliated with other known gang members.” Johnson said you can also infer that he did not change the paper plates on his car so he would not get caught. She said, “You heard Richter say that he could see into the car because a light was on and he was able to see the shirt Butcher had on that night.” [Objection by Olsen, “Misstates testimony your honor,” which was sustained]
Johnson ended by saying that the defendants conspired to sell because all it takes is two or more people to talk about doing something and then execute it and the defendants did make the transactions with agents. She stated, “Yes, this did start out to be a drug bust, but after agents made each transaction they were able to tie these defendants together and they are known as being Broderick Boys or Northern Riders, and you heard Herrera say they do crimes to further promote the gang.” “No one fell in their lap, there is enough proof these defendants kept sales within the known gang members and their area just as Det. Herrera and Mark Harrison testified to.”
She said by the surveillance videos they know they all knew each other. “It is up to you to look at the evidence, read over the statements made, they are pretty consistent and make your minds up. Thank you.”
The jury was sent out to deliberate.