Claims Roil High-Profile Prosecution

February 10, 2011

By JUSTIN SCHECK

A man facing murder charges in San Francisco federal court is alleging that federal agents could have prevented one of San Francisco's most notorious recent crimes, the 2008 killings of grocery store-manager Tony Bologna and his two sons, allegedly by a member of the MS-13 street gang who mistook the family for gang rivals.

The new claims come from the lawyer for Guillermo Herrera and seek to dismiss his federal indictment for murder and other charges. The filings claim witnesses told U.S. immigration and Federal Bureau of Investigation agents that the alleged Bologna killer, Edwin Ramos, had committed various crimes prior to the Bologna shootings, but that agents delayed arresting Mr. Ramos so they could build a bigger case against MS-13.

Prosecutors allege that Mr. Herrera was part of the same gang as Mr. Ramos, but isn't accused of having a role in the Bologna shootings.

While the filings might not affect the outcome of the case against Mr. Ramos or the broader gang prosecution, the claims reveal information about law-enforcement records that shed new light on a case that gripped San Francisco and sparked a nationwide debate about cities' immigration policies.

Mr. Ramos is slated to stand trial in state court in June for the Bologna killings. His lawyer, Marla Zamora, said the Bologna shooter was a passenger in a car Mr. Ramos was driving and that Mr. Ramos had no idea the passenger—who she says hasn't been apprehended—was planning to shoot people.

Mr. Ramos, she said, entered the U.S. legally but had his legal status revoked before 2008. She said she hasn't had access to the law-enforcement documents in the federal case and adds that Mr. Ramos's only criminal convictions occurred when he was a juvenile and that he denies being responsible for any murders.

The question of whether the Bologna killings could have been prevented initially arose in the months after the shootings, when Mr. Bologna's widow sued San Francisco over a law that she says prevented police from turning over Mr. Ramos to immigration authorities during a previous arrest. Had Mr. Ramos been detained or deported because of his illegal status, she alleged, her husband's murder wouldn't have occurred.

Mr. Bologna's widow was citing San Francisco's "sanctuary city" ordinance—a measure passed in 1989 that prohibits police in many cases from turning over suspected illegal immigrants to federal officials. A state appeals court last week dismissed her lawsuit, and Matt Davis, a lawyer for the Bologna family, said he probably won't try to appeal the decision to the California Supreme Court.

The recent federal filings argue that federal agents knew months prior to the Bologna murders not only that Mr. Ramos was in the U.S. illegally but that he was armed and planning to commit crimes. U.S. Immigration and Customs Enforcement officials didn't respond to requests for comment. A spokeswoman for the San Francisco District Attorney's office said Mr. Ramos's culpability "will be determined at trial."

Large organized-crime investigations often force federal agents to make a difficult choice, between making immediate arrests after learning of criminal activity or waiting to gather more evidence to indict an entire group, said Scott Decker, a gang expert who heads the University of Arizona criminology school.

The filings were made by Martin Sabelli, an attorney for Guillermo Herrera, who has pleaded not guilty to five federal charges, including one count of "murder in aid of racketeering" in a shooting death in San Francisco in 2008 and one count of racketeering conspiracy for being a member of MS-13. His indictment is part of a 2008 case called "Operation Devil Horns" that netted more than two dozen alleged MS-13 members. Mr. Herrera's lawyer last week filed a motion alleging federal agents' failure to act on information about Mr. Ramos before the Bologna shootings amounted to "outrageous government misconduct" that should prompt the judge to dismiss the indictment. Mr. Sabelli argued that the government handled the Ramos case so badly that the investigation of all alleged MS-13 members, including his client, is tainted.

The filings cite documents from the FBI and ICE. They were given to Mr. Herrera's defense lawyer under a protective order from a judge. It allows defense lawyers, but not their clients or the public, to see the documents. Prosecutors said in a court filing Monday that the characterization of the FBI and ICE documents by Mr. Herrera's attorney is "debatable." The FBI declined to comment.

Mr. Herrera's filings say informants told agents that Mr. Ramos committed murder, dealt drugs and carried a gun before the Bologna killings. The filings also claim that ICE agents tried to arrest Mr. Ramos at his house, but didn't follow up after they found he wasn't home. Mr. Ramos's lawyer says that while she hasn't seen the federal filings, none of those allegations has resulted in charges against her client.

Mr. Herrera's lawyer alleges that authorities didn't arrest Mr. Ramos prior to the Bologna murder because doing so could have exposed to gang members the identity of government informants and jeopardized a planned "mega-indictment." The Devil Horns probe took more than three years, and culminated with 29 indictments in October 2008, about four months after the Bologna shootings.

In the court filings Monday, Assistant U.S. Attorney Wilson Leung said Mr. Herrera's indictment shouldn't be thrown out, saying Mr. Herrera's motion was filed late and is frivolous. Mr. Leung didn't contest the claims that federal agents had received earlier information about Mr. Ramos.

The prosecutor added that a judge has limited power to censure law-enforcement officials for failing to make an arrest. He accused Mr. Herrera of attempting a "fishing expedition" to get information about the government's case before trial.

The U.S. Attorney's office declined to comment beyond the filings.

Even if Mr. Herrera's claims are true, it is unlikely a judge would dismiss the case, said Bob Weisberg, a Stanford law professor. Mr. Weisberg said it is difficult to get a criminal indictment dismissed without showing that law enforcement clearly violated a defendant's constitutional rights. While arguing "outrageous misconduct" can lead to a dismissal without a constitutional violation, he said, judges are rarely swayed by such arguments.

U.S. District Judge William Alsup is expected to rule on Mr. Herrera's motion to have the case dismissed in coming days.

In response to the Bologna murders, San Francisco's then-mayor, Gavin Newsom, ordered a review of the city's sanctuary rules. He told law enforcement to report juveniles arrested on felony charges to immigration if they are suspected of being in the country illegally.

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