The Federal Prison System and the Tucson Penitentiary

The Federal Prison System and the Tucson Penitentiary

by Danny Fabricant

About 30-some years ago, there were maybe 40 federal prisons in the whole country. Some were Camps known as “Club Fed.” They had about 30,000 involuntary Guests.

Back then, most of the Guests were bank robbers, Mafia members, kidnappers, spies, embezzlers, counterfeiters, international drug smugglers/dealers, Illinois politicians, people who took stolen cars across state lines, stole mail, had silencers or machine guns and other stuff, that everyone understood to be “Federal crimes.”

The 2013 budget for the Federal Bureau of Prisons is around $7 billion. There are currently over 200 federal prisons, holding about 220,000 Guests. More than half of the Guests are serving ridiculously long sentences (often Life w/o parole) for drug crimes; mostly involving two ounces or less of crack or methamphetamine. Some are serving 5-10 year sentences for selling one or two “rocks” of crack.

Equally ridiculous are about 500 Guests serving long sentences for “felon in possession of ammunition.” This is often one old .22 bullet, found in the trunk of a car that’s had 8 owners in the preceding 20 years that they were driving, or in the bottom drawer of an old toolbox inherited from their Grandfather. The penalty is the same as if they’d actually had a gun. Even worse, if the person had two priors that were drug crimes or crimes of violence, a 15 year Mandatory Minimum kicks in. For one tiny bullet.

The 200 federal prisons include about 15 penitentiaries (Pens). Most of the Pens built in the last 15 or so years are all the same design, with twelve, 128 bed housing Units and a Special housing Unit (SHU, or “the Hole”) that holds about 250. The rest are Federal Correctional Institutions (FCIs), Detention Centers, Camps or privately run prisons.

Not counted in the 220,000 are 50,000+ pre-trial federal prisoners, who are housed in county jails and federal & privately run “detention centers,” all over the country, by the U.S. Marshal’s Service. Additionally, many thousands of Guests arrested by Immigration (ICE) are held in ICE detention centers, county jails and private immigration detention centers, nationwide.

As will be explained below, two of the Pens, Tucson and one of the twin Pens in Coleman, Florida (hereafter Coleman) are “special.” This was written in the “special” Tucson Pen.

Less than half of the 220,000 federal prisoners are “normal” criminals. There are many other categories, such as:

RATS

More than a third of the people arrested for federal crimes cooperate with law enforcement, soon after their arrests – sometimes starting before the second handcuff is clicked on. They’re called (“cooperating”) Rats. The federal Gov’t very rarely lets Rats go free as a reward for their cooperation, unless their cooperating (and testimony) causes a whole bunch of people to get arrested and convicted.

Most cooperating Rats only get a year or so knocked off of what they would have gotten, if they hadn’t become Rats. Some get nothing off (Gee, what a tragedy).

Certain Guests of jails and prisons get into the habit of informing on other Guests’ behavior. They’re also Rats.

SEX OFFENDERS

At least weekly, every newspaper in the country has at an article(s) about local perverts being sentenced to long terms in federal prison for having Kiddy Porn on their computers, failing/refusing to Register as Sex Offenders, or other assorted federal Sex Crimes, usually involving children.

Every month of so, the News reports some federal sting operation were 100+ perverts are arrested, either in one area or nationwide. Nearly all of them are held without bail, and soon either plead guilty or are convicted. Those without prior sex related convictions usually get sentences between 5 and 20 years. They are sent to one of the 15 or so FCIs that are set up with Sex Offender programs. These “programs” are very costly. In that they were dreamed up, and run by, the federal Gov’t, it’s a safe bet their eventual “success rate” will be in the single digits.

The ones who get huge sentences (because their current crime or prior convictions were really horrendous), get sent to Pens. Many of the Sex Offenders actually look like what you’d expect a really creepy pervert to look like. Some get a bunch of tattoos, to try to look like a “normal” Guest, but, like lipstick on a pig, it doesn’t fool anyone.

The Tucson Library has to take the multi-page, Target & K-Mart (etc.) color ads out of the Sunday papers, to keep the perverts from stealing them. Some of them would cut out the pictures of children, and glue or tape them up in their cells. (How could I make this up?)

Some of the perverts are completely unrepentant – often bragging and joking about the numbers, and ages, of children they’ve had sex with. Many of the perverts “pick up bibles” as soon as they get arrested. Walking by the Chapel you can often see bunches of them seated, with one at the podium, speaking to the others: “…and Jesus has forgiven me for having sex with my children. (polite applause) And when I get out, He’s gonna help me get them back!” (And the crowd went wild.)

HOMOSEXUALS

White, Hispanic and Native American Homosexuals eventually get run off of the yards in normal Pens – it they “race-mix” they get beat up and/or stabbed, and immediately run off. After a year or so in a SHU, they (since 2008) end up in Tucson or Coleman. More than half of the Blacks at Tucson regularly have sex with various Homos, but they don’t consider themselves to be Homos – Yeah, right.

Some of the Homos are otherwise normal Gay guys. Others are flamboyant – like what you would expect t see riding on a Float at a San Francisco Gay Pride Parade. Some try to look like women. Some act like really stupid 13 year old girls. **{And then there’s the prisoners.}

Tucson has at least 100 “married couples,” happily celling together and copulating one another on a daily basis. Many of the Homos appear happy to be here – they have all the men they can eat. There’s at least one prostitute in nearly every housing Unit. A few of the prostitutes regularly sneak into other Units, plying their trade. Early morning cops constantly find the “married” ones in one bunk, while conducting counts. They just shrug their shoulders and continue counting. Rookie cops are funny the first time they catch two of them. Lots of yelling & calling for “help” on the walkie talkie.

There are also predatory Homos, who (I guess) like “the thrill of the chase.” In that many of them are serving life sentences (or several hundred years), and can’t be sent anywhere else except Coleman, there is really no way they can be effectively punished/stopped. Put them in the SHU and they often rape the other guy in the cell. The retarded Guests are often targets.

CHECK-INS

Check-Ins (known in state prisons as PCs) are Guests who have been put into protective custody, normally at their own request. This can be because they either burned, angered, or decided to drop out of, a prison gang. In most cases, they befriended other Guests and borrowed money from all of them, or gambled and/or bought drugs on credit (often all 3) & then “Checked-In.” These scumbags have usually done this at several other Pens and finally end up at Tucson, or Coleman, and then they do it again.

THE MENTALLY ILL

At least 100 of the Guests at Tucson are seriously mentally ill or retarded. Some are the people you’d see walking around downtown, in major cities, talking to themselves. Some look like 10 generations of in-breeding. They are usually given strong psych medicines, once or twice a day. This causes a lot of them to harmlessly stay asleep in their cells, most of the day.

The violently mentally ill will eventually be put in the SHU, with a “Psych Hold,” but only after they’ve assaulted other Guests, or employees, multiple times.

Some will continuously make feeble attempts at suicide, so they get to take an ambulance ride to a local hospital and stay there for a couple of days. Swallowing razor blades is a popular method. The violent and suicidal ones eventually get sent to a psychiatric prison.

All the Sex Offenders are supposed to regularly see a Psychiatrist, either monthly or quarterly. Inasmuch as they have to do this, many take advantage of the situation by faking symptoms that get them the psych pills. Guests who have been getting the psych pills for years gladly explain what symptoms the others should describe to the Psychiatrists, to get pills of their own.

Why? There’s a huge business in selling the psych pills. It’s not too difficult to only pretend to swallow the pill(s) they hand you, through a little window. There are many customers waiting to buy them. Occasionally, a large, violent, mental defective will either save up, or buy, 5 or 10 days worth, wash them down with half a gallon of homemade wine, and go on a rampage.

The retarded Guests are often preyed upon by others, either sexually or by those who get them to give or sell them their pills, often way below the going rate.

WHITE GUYS WHO WANT TO BE BLACK

This category needs no further explanation.

SCUMBAGS FRESH FROM COURT

Before mid-2008, Sex Offenders and Rats would just be sent to any Pen, and go to the yard upon their arrival. Often on their first day, they’d be badly beaten and/or stabbed multiple times. After medical treatment, sometimes at an outside hospital, they’re put in the SHU, in protective custody status.

Normally, nothing happens to the guys who beat them up/stabbed them, as prison officials have no love for Sex Offenders, Rats, Check-Ins, etc. All federal prisons have electronic law libraries, where new Guests’ names are easily run. The system often locates details about their prosecutions and appeals. If nothing comes up, and they have no Court paperwork with them, information about them is accessible by any prison employee, on the staff-only terminals in every housing unit’s office and job site. New sex offenders/rats, etc. who “slip through” initial inquiries are soon outed, by employees.

Guys beaten up/stabbed used to be held (in PC status), in the SHU for about a year and then they’d be sent to another Pen. By the time they’d get sent to another Pen, there’ll always be somebody there from the last Pen, who will recognize them. The process then starts over. Many of them would (wisely) refuse to go the Yard at the next Pen, spend another year in a SHU, and then get sent to yet another Pen.

Eventually, the SHUs in every Pen had 50-110+ long-term PCs, waiting to be sent to other Pens. In about 2008, the Bureau of Prisons decided to turn Tucson and Coleman into “safe havens.” Starting mid-2008, Tucson and Coleman became the places to send High Security Sex Offenders, Rats, out-front/flamboyant homosexuals, former cops and prosecutors, Check-Ins, White guys who want to be Black, and similar Guests who can’t be in a “normal” Pen. Cooperating Rats and Sex Offenders with huge sentences are now sent right to Tucson or Coleman, from Court.

With typical Government efficiency, Tucson (and probably Coleman) still have a few “normal” Guests, who have to endure being surrounded by scumbags. Some of the remaining “normal” Guests were here before the scumbags started being shipped in, and simply weren’t transferred out. Between mid-2008 and 2/3 of the way through 2009, 500+ of the normal Guests in Tucson were sent to other Pens, to make room for the scum. But, they stopped shipping “normal” Guests out, about September, 2009.

Normal Guests who have major medical problems are still regularly sent to Tucson, because it’s rated “Care Level III” (whatever that means). Only a few Pens are “Level III.” There’s probably 100 Guests with wheelchairs, walkers or canes. Others were sent here because they’re dying of various ailments, but they’re not bad enough (yet) to be sent to the Butner, North Carolina Medical Facility, usually to die. Many of the “Level IIIs” are also scum, but some are completely normal.

In mid-2010 & early-2011, two “Level III” Florida Outlaws were sent to Tucson. In mid-2012, one was sent to Butner. In late 2012, the larger one was finally transferred out, after two years of constantly beating up Pedophiles. For unknown reasons, some “normal” guys from Arizona still get sent to Tucson, right from Court.

The in-prison Rats (many of whom are also Sex Offenders) occupy their time telling on everything that goes on in Tucson. The email system allows Rats to instantly tell on stuff – no having to wait for notes dropped into the unit mailboxes to get routed somewhere the next day. They get no rewards for this. They just do it as revenge or hoping it builds them up “points” somewhere.

A few Rats even send emails telling on the employees, sometimes for not searching the required five cells per shift. The employees are usually given copies of the Rat’s email(s). The employee told on then goes and searches the Rat’s cell – very often finding contraband that gets the Rat thrown in the SHU for several months (awwwww).

Nearly all the White guys in Tucson are Sex Offenders (usually pedophiles), Rats, Homosexuals, Check-Ins, or all of the above. Nearly all of the Blacks are cooperating (and in-prison) Rats, Check-Ins or rapists (sometimes everything.) Nearly all the Natives are either Sex Offenders, Rats, Check-Ins, Homos or are from Arizona, and just got sent here from Court. The Hispanics are pretty much gang dropouts or illegal border crossers w/long sentences. Some are also Sex Offenders. There’s less than a half-dozen Asians in the whole place.

Tucson has most of the features/activities the other Pens have, with appropriate differences. There are bands, who play on the yard, on some holidays. This becomes Dances. On Valentines Day, they have a Dance in the Gym. One of the “normal” guys at Tucson (who shall remain nameless) wrote and re-wrote (a la Weird Al Yankovich) a few songs, making fun of the pedophiles. He passed copies around to some of the other “normal” guys. One of them gave copies to guys in the bands. These songs now get sung at the Dances.

USP-TUCSON VERSION of Freddy Cannon’s “PALISADES PARK”

Last night I took a walk after dark,
A swingin’ place called Pedophile Park,
To have some fun and see what I could touch,
That’s where the kids are.
I took a ride on a shoot-the chute,
Cub Scout I sat beside was awful cute,
And when we stopped, he was holding hands with me.
My heart was flying, up, like a rocket ship,
Down, like a roller coaster,
Back, like a loop-de-loop,
And around, like a merry-go-round.
We kissed and hugged and it felt real grand,
We danced around, to a cool Boy Band,
And when I could, I pulled that boy’s pants down,
In the Tunnel of Love.
You’ll never know how great a child can feel,
When you stop at the top of a ferris wheel,
When I fell in love, down at Pedophile Park.
I saw a priest with an Altar Boy,
Who said his robe hid a special toy,
They took a ride, and the Boy sat on his lap,
Through the Tunnel of Love.
You’ll never know how great a child can feel,
When you stop at the top of a ferris wheel,
When I fell in love, down at Pedophile Park.
I met a girl at the Barbie Doll stand,
Bought her some candy and I held her hand,
We rode a ride, and I held her close to me,
In the Tunnel of Love.
You’ll never know how great a child can feel,
When you stop at the top of a ferris wheel,
When I fell in love, down at Pedophile Park.
You know it’s Pedophile Park.
Down at Pedophile Park….

USP-TUCSON VERSION of Sam Cooke’s “ONLY SIXTEEN”

He-ee was almost 13, almost 13,
And I loved him so-o-o,
But he was too young, to fall in love,
And I had just joined NAM-BLA;
We’d laugh and we’d sing, and do the funny things,
that made our hearts glow-ow-ow,
But he was too young, to fall in love,
and I had just joined NAM-BLA;
Why did I give my heart so fast,
Oh, it will never happen again,
‘Cause I was a mere lad of 35,
and I’ve served twelve years since then;
‘Cause he-ee, was almost 13, almost 13,
and I loved him so-o-o, but he was too young,
to fall in Love, and I had just joined NAM-BLA;
Yeah, he was too young, to fall in love,
and I’ve served twelve years since then……

A CHILD MOLESTER RAP SONG

I’m a Child Molester, I think I’m real Cool,
Every day I hang out by, the Elementary School;
I’m a Child Molester, Don’t know why all the Fuss,
Just tried to get my old job back, driving the School Bus;
I’m a Child Molester, I think life’s just Dandy,
Look here comes a Little Girl, now where’d I put that Candy?
I’m a Child Molester, in Mud Puddles I go Stampin’,
Can’t wait till next Summer & I take the Cub Scouts Campin’;
I’m a Child Molester, some Folks think I’m Sick,
cause when I see a Little Boy, I want to suck his D**k;
I’m a Child Molester, now I’m a Big Bad Con,
Skipping down the Hallways, at U.S.P. Tucson.
(© 2011, Danny Fabricant)

What the Hell am I doing here? Tucson opened up in early 2007, as a completely “normal” Pen. I was in the Victorville Pen then. They put up Notices saying, “Anyone who wants to go to the new Tucson Pen, see your counselor.” All the guys who were from Arizona and New Mexico signed up, but none of them were sent here. Instead, they picked guys who hadn’t had a write-up in at least a year, and once a week, at about 4:00 AM, woke up groups of about 40 (a full bus) and told them to “Pack up your stuff, you’re going to Tucson, NOW.” I was on the second of about ten buses.

A few months after I was here, my convictions were reversed. In December, 2007, I was flown back to Los Angeles for Trial II. In January, 2010, I was returned to Tucson. (You always go back where you left from when you go “out to court.”) It had changed to “Pedophile Park.” I asked to be sent back to Victorville. I was told, “You missed the last train out – you’re stuck here.”

What had happened was, in late summer 2009, after about 500 or so “normal” Guests were sent to the other pens, to make room for the incoming scum, the transfers out slowed way down. By about September 2009, any White guy sent to another Pen was attacked, usually the first day, for not leaving with the larger crowds. So they stopped sending White guys to any “normal” Pen.

When I came back here, in January 2010, it was too late to leave. Of course, I could have demanded to leave, and sat in the SHU for 6 months to a year. But, with the appeal of my convictions (and life sentences) needing to be started, that was hardly a viable option. So I’ve spent 3 years in Pedophile Park. There’s only four guys I’ll speak to, in my 128 bed housing Unit. I believe maybe 25 White guys (mostly Care Level IIIs and 2007 leftovers) in the whole of Tucson are “normal,” and I’m being generous. At least I’m usually by myself in the cell, about 10-11 months of the year; unless they fill the place with new scum. As soon as a bed opens up in the unit, he’s moved into it.

It’s a lovely place – your Federal Tax Dollars at work.

Fast and Furious Breaks Down (29)

After whistleblower Dodson first contacted Senator Grassley, months went by, and in December of 2010 a border patrol agent named Brian Terry was killed on the American side. At the crime scene the bad guys left behind two weapons which, lo and behold, turned out to have been peddled, along with hundreds of others, through Operation Fast and Furious. Supposedly, the program was shut down in the following month. At the end of January, Grassley wrote to U.S. Attorney General Eric Holder. But in May, Holder told the House Judiciary committee that he’d only known about the whole problem for a few weeks, which turned out to be a big fat fib. By August 2011, Holder had put the Inspector General on the case (the same office that had persistently ignored Dodson) while he himself was being investigated by both houses of Congress. Imagine that — the Justice Department itself was under scrutiny.

Meanwhile, the ATF’s William Newell was one of the first people questioned by Sen. Grassley, and his attitude was, “Gun-walking? What gun-walking?” This was the same ATF agent who had disregarded Jay Dobyns’s pleas for protection when he was (or was not) in danger from vindictive motorcyclists. Newell was up to his neck in Fast and Furious, and his former boss, ATF Deputy Assistant Director William McMahon, was in pretty deep too. According to Dobyns, who was interviewed by Katie Pavlich for her book, Fast and Furious: Barack Obama’s Bloodiest Scandal and the Shameless Cover-Up, an agent named George Gillett was also “intimately involved.”

Apparently, the interpretation Dobyns gave is that he was Newell’s test monkey. Whatever outrageousness Newell was allowed to get away with in manipulating Dobyns, would determine how far he would dare to go next. Silence from Newell’s higher-ups implied “the sky’s the limit,” and gave him the green light for the much greater atrocities of Fast and Furious, like claiming under oath that he never let guns walk into Mexico. In a larger sense, Dobyns is probably right. He was the first but not the only person to realize that if hoodlums like his bosses (and himself ) had been reined in sooner, a lot of trouble could have been avoided. He convinced Pavlich, who wrote,

“If ATF had taken steps to hold Newell, Gillett, McMahon and others responsible for their irresponsible actions surrounding the Dobyns case, Fast and Furious wouldn’t have happened, but because ATF openly rewards bad behavior and corruption, Fast and Furious was utterly predictable.”

Try this on for size: If ATF had taken steps to hold Ciccone, Torres, Castro-Silva and others responsible for their irresponsible actions surrounding the Fabricant case, Fast and Furious wouldn’t have happened. The parallels are everywhere. The ATF shot-callers don’t differentiate between lower-level government employees and feral bikers; they’re all just pawns in the game.

At this point, all anybody knew was that Fast and Furious originated with the Phoenix office. Then in October some memos turned up and uh-oh, apparently Attorney General Holder knew about it at least a year previous to what he was copping to. In November, Holder appeared before the Senate Judiciary Committee and admitted for the first time that yes, there was gun-walking. The following month, the FBI director found it necessary to testify that his agency was certainly not helping with any cover-up of anything related to the death of Agent Terry at the border.

Rep. Darrell Issa was chair of the House Government Reform and Oversight Committee. As 2012 rolled in, Issa raised hell because his committee had only received less than one-tenth of the documents they subpoenaed from the Justice Department. And what they did get was all blacked out. Plus, no access to witnesses. These things happen even to a Congressman! The Justice Department threw all blame for Fast and Furious onto Arizona’s U.S. Attorney and the ATF. Holder appeared before the House Judiciary Committee and said there was no cover-up. By now, a lot of people were wondering who knew what, and when they knew it.

President Obama backed up his Attorney General’s right to hold onto his paperwork, subpoena or no subpoena. The House of Representatives pushed back by making the Attorney General the first cabinet member in history to be held in criminal and civil contempt of Congress. Everybody got sidetracked into issues about the withholding of documents, and marveled over the amazingly rapid succession of changes in bureaucratic staffs, and lost sight of the basic stupidity of Fast and Furious.

Such a spectacular clusterfuck will present any agency with the opportunity to settle grudges and rid itself of dead wood. There must be sacrificial goats. And now and then, a remorseful bureaucrat will take a hit for the team, and quit under a cloud of suspicion. In August 2012, a Congressional Oversight Joint Staff Report report laid the blame for Fast and Furious on several individuals.

Arizona U.S. Attorney Dennis Burke had already quit, after admitting that he leaked memos to discredit the unruly Dodson. William Newell had already been moved from Phoenix to another ATF post. William McMahon, who had been Newell’s supervisor, was in Washington watching over the ATF’s ethics, as the head of Professional Responsibility. Kenneth Melson, who had been the ATF’s Acting Director, told investigators that some of criminals targeted by Fast and Furious could never be indicted, because they were confidential informants employed by the DEA and FBI (just as the unindictable Mike Kramer was employed by the ATF.) Melson also told them exactly what papers to ask for: the wiretap applications, which would prove that a whole bunch of officials had known about Fast and Furious for quite some time. Issa and Grassley considered these documents to be the “smoking gun” of the case. Over at the DOJ, they created a sinecure for Melson, but he didn’t last long and soon retired.

The ATF’s former deputy director William Hoover, who seems to have made an effort to end Fast and Furious, was first reassigned and then retired. Mark Chait, former Assistant Director for Field Operations, was demoted. Supervisor David Voth, who also came in for censure, had been promoted. A Deputy Assistant Attorney General named Weinstein had resigned. Despite the promises Obama and Holder made to clean house, they don’t seem to have actually fired anyone.

The Acting Inspector General of the DOJ, Cynthia Schnedar, quit too, in the spring of 2012. But the Justice Department had a new Inspector General, Michael Horowitz, and in September he told the House Oversight committee that the ATF seriously needs reform and control. On paper, the ATF agents who went public with their stories were supposedly exonerated. And what about the higher-ups who retaliated against the whistleblowers, will they be punished? Horowitz said the agency would look into it. Tattling to outsiders is called “jumping the chain of command” because the only person you’re supposed to complain to is your immediate superior, and of course that is not only useless but self-destructive. The ATF hates whistleblowers as much as ever, and its new acting director has warned his employees that they will toe the line and do things the ATF way or suffer the consequences.

Fast and Furious busted a few straw purchasers and not a single drug lord. It only proved how easy it is to sell guns to Mexican bandits. Well, duh! As for whoever thought up Fast and Furious, that’s still a mystery, and so is who authorized it.

Scapegoat and Symbol (28)

From ’61 on, came the argument between petulant lower-court judges and the Supreme Court. And spoiled rotten DAs. When they lost a case… the city attorney in Los Angeles, every time he’d lose in Washington, I’d get my ass kicked when he got home.

That was Lenny Bruce again, on scapegoating and its repercussions on anyone designated to be a symbol of everything the authorities hate. Danny Fabricant must be a symbol, or else why is he serving the same sentence as the Underwear Bomber, who tried to kill an airplane full of people? Law enforcement argues that the ends justify the means. But nobody even knows any more what the ends are. To what purpose is a small-scale purveyor of 51.9 grams of a substance to another biker, serving a life sentence? What exactly was the point of selling a massive amount of untraceable weapons to vicious thugs in Operation Fast and Furious? What did the beating death of Kelly Thomas achieve? From national security right down to a savage attack on a homeless mental case, and everything in between, law enforcement has gone berserk.

While Danny Fabricant may not be Boy Scout of the Year, he seems to have been elected Scapegoat of the Decade. But why? One reason might be that the egotistical and publicity-loving John Ciccone took a personal interest. The agent’s sleazy tactics caused the prosecutions of large groups of Hells Angels to be, for the most part, dismissed. But maybe all he wanted was the Fabricant trophy. Maybe all that other waste of resources was worthwhile, because it got him the one guy he had peculiar vendetta against.

When you really wrap your head around what goes on in the legal system, when you truly understand what kind of a clown-show can put a person in a cage for the rest of their life, it’s frightening. They just round people up, like buying a string of lottery tickets, hoping there’s a prize in there somewhere. With these “operations” they flung out a giant net and, at the end of the day, had nothing to show for it except this not very big fish. They went after Moby Dick and speared a tuna.

This saga was like some grotesque game of musical chairs, with Fabricant the last guy standing. They’ve got to have something to show for the Black Biscuit, Dequiallo and Casino Shooting Incident operations, and he’s all they have left. They’re like a rube at the county fair who blows $50 tying to win the giant stuffed panda by throwing baseballs at bottles, and ends up with a lucky shamrock can opener.

This particular motorcycle enthusiast makes a very satisfactory scapegoat in other ways. Maybe he’s catching the retribution that the system feels should have been dealt out to his father. Without a doubt, the system has a personality conflict with anyone who has the gall to represent himself. Here’s a guy who stubbornly maintains his individuality, sticks up for not only his own rights but those of others, and helps out in other ways where he can. And never quits.

One way of looking at it is that Danny and Rachel were collateral damage in the Garcia murder, Not victims to the extent of losing their lives, but certainly to the extent of losing large portions of their lives. Allowing Kramer to get away with two murders has to be justified somehow. In authority’s eyes, sentencing Danny to life mystically balances things out. Even though he had no part in the Garcia murder, he’s somehow the surrogate, taking the punishment that should have been Kramer’s.

A person might believe that everything the court has done so far was technically legal. Still, it would be necessary to admit one thing. The fact remains that at any stage, the court could have done something else. There were many points at which the court could have made a different and equally legal move, that would not have resulted in Danny Fabricant still being locked up. That’s the long and short of it, the nitty-gritty, the essence, the kernel, the core.

And all they got was this lousy t-shirt (27)

As we mentioned, in mid-December, 2009, Danny was again sentenced to two life terms and immediately filed a Notice of Appeal. He had also asked the judge if he could serve the sentence on weekends, and be granted bail pending appeal. Both (perfectly reasonable) requests were denied.

Because Danny had life sentences, the 9th Circuit required that an attorney do the “direct” appeal. Jonathan Libby entered the picture, the Appellate Dream Team rolled into one. In 2012 he was the attorney who convinced the Supreme Court to throw out the “Stolen Valor Law,” as violative of the free speech clause of the Constitution. Libby immediately was put on Danny’s appeal by Sean Kennedy. However, because the case was so complex (the trial court file had over 900 documents in it, and there were dozens of hearings on the hundreds of motions Danny has filed since his December, 2003 arrest), it took more than two years for the opening brief to be prepared and filed. Opening briefs in criminal appeals have a 14,000 word limit, but Danny’s was almost 20,000, and the 9th Circuit allowed the outsize document to be filed. Several more extensions of time were allowed, both to the government (who initially tried, unsuccessfully, to file an even larger opposing brief) and then to Libby, for the reply brief. The appeal is presently set for oral argument on January 9, 2013.

Danny has been keeping busy the last three years, spending seven days a week in the prison’s law library. He has filed dozens of Freedom of Information requests, seeking documents to use in Trial III. He continues to file motions with the trial judge, who denies 90% of them. He takes a new, separate appeal of every order denying a motion. All of those “little” appeals will be heard along with the main appeal. He has also been preparing motions to be heard before Trial III, more than 150, to date. In the brief filed by Libby, the 9th Circuit has been asked to assign the case to a different judge for Trial III.

The first two trials were each over in a week. The cross examination of the government’s witnesses was limited, because the defense only received about 20 of the 173 Operation Dequiallo reports, and those were all heavily redacted. Mike Kramer made at least 113 recordings, some of them audio-visual recordings filmed through a camera lens-button on an ATF-provided cowboy shirt. The defense was only given parts of about 10 of the recordings. Both Danny and attorney Sean Kennedy filed numerous motions asking the judge to order the government to provide the full set of reports and all of the recordings. Each time, the government told the judge that they had “…fully complied with our discovery obligations,” and they had determined that none of the documents and recordings requested were relevant. And that was good enough for the judge.

The 173 Dequiallo reports dealt solely with Kramer’s more than two years of ATF employment. Other sets of ATF reports were prepared in connection with the Arizona Black Biscuit and Laughlin, Nevada casino shooting investigations. The judges in the Arizona and Nevada cases ordered the government to provide every defendant in those cases with copies of all Operation Dequiallo, Black Biscuit and casino shooting reports, and an unknown number of the 113 Operation Dequiallo recordings. Both judges felt that due process required the disclosure of full sets of all ATF reports and many of the recordings. Unfortunately, Danny did not get copies of everything until after he had been convicted in Trial II.

Strangely missing from all those reports and other Operation Dequiallo documents is any mention of the United States Attorney’s office authorizing Mike Kramer to carry a gun. During Trial II, as we saw, John Ciccone testified that he had obtained this authorization from Los Angeles Assistant U.S. Attorney Rod Castro-Silva, the overseer of Operation Dequiallo. Numerous Freedom of Information requests have (so far) failed to uncover any such documents. This subject will be raised during Trial III, and Mr. Castro-Silva’s answers will be interesting.

Danny wants to demonstrate the obvious: the expenditure of tens of millions of dollars with very little to show for it, in terms of what might be called law enforcement product, such as convictions, and total years of imprisonment for heinous specimens. It was worthwhile to the federal government to excuse a murderer, in order to convict Danny and Rachel, and maybe drive a motorcycle club or two into partial dysfunction. He wants a jury to see that he is a scapegoat and a symbol, embodying the ATF’s last hope of somehow justifying the waste of so many millions. The kind of things they’ve been doing with him and other motorcycle enthusiasts are part of a bad behavior pattern that led to the incredible Operation Fast and Furious mess. He wants to remind you that, while he serves the life sentence that rightfully belongs to double murderer Kramer, the very same Kramer might be competing with you for a space in Walmart’s parking lot. Or living next door, and eyeing your daughter.

For the rare person who might not know it, many tourists buy garments imprinted with “My folks went to Paris, and all I got was this lousy t-shirt” or the local equivalent. The ATF ran its “operations” to Arizona and California and a bunch of other locations. Pretty much all they got for their effort were some Mongol t-shirts. And Rachel and Danny.

“Fast and Furious” Revs Up (26)

A “straw purchaser” acts by proxy, for an ultimate possessor who is not legally allowed to buy the item — like a grownup who gets beer for teenagers or a crook who buys assault weapons on behalf of drug cartels. In the fall of 2009, the borderland ATF supervisors received a memo that urged them to broaden their scope. Agent Newell, in charge of Arizona and New Mexico, was all about scope-broadening. Selling long guns to the bad guys without even asking for ID sounded like a good idea to him. In practical terms, this meant the government told reluctant dealers to go ahead and break the law and sell the shady characters their AK-47s and whatever else they wanted. Operation Fast and Furious was underway. Later on, when Congressional committees got involved, Newell distinguished himself by stating for the record that he would do it all over again. He had in fact already done it before, as head of the program’s precursor, “Operation Wide Receiver.”

As the new year kicked in, the Justice Department contributed personnel from its own anti-drug task force, including agents from Homeland Security, the IRS and the DEA. But by March, after five months of existence, and even with all that borrowed talent, it might have been called Fast and Furious and Fail. Nobody had been indicted, and it didn’t look like anyone would be, any time soon. Plus, hundreds of untraceable guns were out there somewhere.

How did this come about? In earlier test runs, circa 2005, the agency had used RFID tracking chips in the guns that “walked.” The Mexican authorities were ostensibly on board, intercepting guns in their country and reporting back. There were glitches, and some guns went astray. Later, when they launched Operation Fast and Furious, the ATF skipped the small but seemingly essential step of implanting the tracing chips. They also disabled the international eTrace system that was set up to track weapons’ serial numbers. Also, the Mexican government didn’t have a clue, so it was not catching smuggled guns at the other end. The ATF didn’t even tell its own Mexico City staff what was going on.

Of course the ill-conceived program “went South,” as the cliché has it, ultimately causing the deaths of hundreds of Mexican nationals and at least two Americans. Worst of all, word was going around. William Hoover, the agency’s acting deputy director, held an emergency meeting to brainstorm an “exit strategy.” But it was too late. The whistle couldn’t be unblown. An ATF special agent named John Dodson spoke with with Senator Charles Grassley of the Judiciary Committee. He had also tried to alert the DOJ Inspector General’s office but they didn’t want to hear it. He went on to share his concerns with the world via CBS news, and was denigrated by his agency as a disgruntled employee and a mentally unstable one, at that. The ATF reassigned him to work under a guy who hates whistleblowers even more than the guy he previously reported to. When investigators asked this boss whether Dodson had been retaliated against in any way, he told them he didn’t know and didn’t care.

Fast and Furious is said to have spawned a dozen whistleblowers, proving that even experienced agents can finally get a bellyful of corruption. As matters progressed, an ATF group supervisor named Pete Forcelli was appalled by the lies Newell told at a press conference. A few months later, he had a difference of opinion with the assistant U.S. Attorney who supervised Fast and Furious, over an obvious bad guy with a car full of explosives, who was let go. Then there was special agent Vince Cefalu, a spoilsport federal agent with quaint scruples about illegal wiretapping and stuff. He started the website CleanUpATF.org, broke the story of the “grotesquely dangerous and reckless” Fast and Furious operation, and eventually was ignominiously fired in a parking lot transaction whose video record weirdly resembles a drug deal or a ransom exchange.

Mongols, Black Rain, Dobyns (25)

Meanwhile, back in the world, what were all the other bad boys up to? Federal agencies had been watching their Hells Angels cases turn into train wrecks. They had even foreseen it, and were inspired to lay out ever more ambitious infiltration strategies. At the same time, they found the Mongols organization very easy to penetrate. There was confusion within the ranks. In the summer of 2008, Ruben “Doc” Cavazos, who had been the Mongols international president, got kicked out for instigating violence and stealing nearly $200,000 from the club. One income stream was the money paid in advance by chapters nationwide, for complete background checks on prospective new members. Doc was supposedly paying a private investigator $500 for each background investigation, but he just pocketed the money and would eventually notify each chapter that their prospect(s) had “checked out OK.”

A month or two later, Operation Black Rain’s arrest warrants were served, per the Central District of CA, and other federal jurisdictions’ indictments. Doc and his son and brother (also former international officers who had been kicked out) were arrested with the 50+ California Mongols. Those three, and several others, immediately agreed to cooperate. Doc stayed busy telling tales to the government about his former brothers and affirming that the Mongols are indeed a racket, just as the G-men suspected all along.

Operation Black Rain culminated in a multi-agency, multi-state sweep that utilized more than 1,500 police in military accouterments, equipped with 162 search warrants. They seized a bunch of motorcycles and guns. Out Bad quotes John Torres, the same agent who had blatantly overstated what an impressive coup it was to sentence Danny Fabricant. With characteristic hyperbole he announced, “Today, the leadership of the Mongols, one of the most violent outlaw motorcycle gangs, was taken down. For three years, four brave and dedicated ATF undercover agents put their lives on the line to infiltrate the Mongols.”

The press release didn’t mention the three others, back East, who continued to play motorcycle games for another year. In other words, a total of seven ATF undercovers had been accepted into the Mongols by the time Operation Black Rain suddenly ended. Luckily for the ATF, the East Coast Mongols were friendly with the Outlaws. After all, they had a common enemy – the Hells Angels. At least two of the ATF/Mongols became Outlaws. After a year or so, they rose in the ranks and were able to cause the indictment and convictions of the international Outlaw president and many others in that club.

In the West, there was the ultra-violent Billy Slow Brain, agent William Queen, whose masquerade only managed to bring about some relatively minor charges and sentences. Strangely, back when Queen ran Operation Ivan against the Mongols, he spoke to the press about guns and drugs and assaults, but said nothing about racketeering. And Ciccone himself, back in the Operation Black Rain days, had testified to a 2004 grand jury that the Mongols motorcycle club was not a racket. The case was People v. Fernandez, and Ciccone said the members were in it for fear and intimidation, not money. But by the summer of 2009, rage against the Mongols was intense, and the government longed to prove them to be a racketeering enterprise.

Agent Ciccone muddied the waters by, for instance, telling the judge that US v Cavazos had to be top secret, because if sealed plea agreements were unsealed, the lives of those defendants would be at risk. The wily agent also took the time to correspond with The Aging Rebel website, posing as a biker and Hells Angel groupie called T-Dogg. These outpourings provided Davis, who is proprietor of the site, with plenty of insight into Ciccone’s psychological motivations for persecuting motorcycle enthusiasts.

When the Mongol arrests were made, Doc and the other “cooperating” Mongols who were not immediately released were taken to the protective custody wing of an old San Bernardino County jail. Meanwhile Danny, recently convicted in Trial II, was still in the Metropolitan Detention Center, Los Angeles, which has six 128-bed housing units for male, pretrial guests. More than 40 of the remaining Mongols were to be housed there. In jails and prisons, there is normally an unofficial truce between motorcycle club members whose organizations are currently “at war” with each other. Still, the security people quickly decided that the incoming Mongols would be divided into the other five units. Having no common yard or chow hall, the guests of the various units ordinarily do not interact with each other.

In the MDC-LA, it was well known where Danny could be found on weekends – the “extra law library” sessions. Guests who are not representing themselves can sign up for one weekend per year in the law library. A few weeks later, Danny got a note from a Mongol he knew, asking if it would be okay if he signed up for a weekend session, so they could talk. Sure. They traded common information, mostly about Ciccone. Different Mongol officers then signed up for individual weekend advice sessions. Danny received copies of a lot of their discovery paperwork, which will help in his next trial.

The Mongols’ case was assigned to Florence Cooper, the “best” judge in the Central District. (Danny had the second worst). Late in 2009, the nice old judge was planning to retire, so about 30 of the Mongols entered guilty pleas, because chances for lenient sentences were better with her and a guilty plea, than with a to-be-assigned judge and a trial. Unfortunately, Judge Cooper died a few months before retirement, and her replacement “really dumped on them.”

Meanwhile, the ATF also experienced trouble in the ranks. Jay Dobyns had abandoned his Jay “Bird” Davis persona since 2007. The other Davis, “Aging Rebel” interviewed Dobyns and captured a quotational gem: “Going through what I have and am going through changes a person… You lose faith in people in general. You question whether or not people you trusted really understand loyalty.” This, from a man who had received all kinds of help and brotherly support from the Hells Angels it was his mission to betray. He had collected evidence against them and while they fought their charges, Dobyns was suing his employers for not appreciating him enough. Apparently, the ATF is well known for punishing agents who fall from favor. Cops of all kinds cherish their cult of brotherhood, but it seems like motorcycle clubs could teach them something about loyalty. The master betrayer was betrayed by his own gang.

When Dobyns eventually published a book about “living the ultimate bad boy fantasy,” his PR touted him as the man who brought down the Hells Angels. But he himself admitted that in nearly every way, the Hells Angels had won. The big major case that Dobyns engineered had pretty much dried up and blown away. He attributed this failure to the squabbling between his ATF bosses and the local prosecutor. Other sources say that even when the judge threatened to dismiss the damn thing, the bosses defied the disclosure rules and held back material because it would reveal Dobyns’s lack of credibility.

Though he had granted them victory, Dobyns was sure the Hells Angels were out to get him anyway. Supposedly, his name had been inscribed at the top of their hit list. Despite his media stardom, things were not going well at work. He told a reporter, “The only people who hate me more than the Hells Angels are ATF’s shot-callers.” It was to Special Agent in Charge William Newell that Dobyns reported the threats made against him. Newell, he said, not only refused to protect him from an international crime syndicate, but concealed the fact that he had asked for help. Even when the wayward agent’s house burned down, Newell refused to investigate. The strong implication was, where a drama queen and attention whore like Dobyns was concerned, who knows? He might have torched the place himself. Not surprisingly, the ATF deemed him mentally unfit to work.

Dobyns marketed himself as a courageous whistleblower and the lone defender of… something or other. But his complaints did not stem from the agency’s misdeeds toward anyone else, or anything the fake Solo Angeles had been allowed to get away with. It was all about his own perceived mistreatment and Newell’s callous disregard for his family’s safety. Dobyns whined that the government should take him under protection instead of abandoning him. The Dept. of Justice issued a report that favored Dobyns, and scolded the ATF for not giving him the same sweet WITSEC deal the other degenerate snitches get.

Dobyns complained to the ATF’s John Torres, Special Agent in Charge of the Los Angeles Field Division. Torres blew him off and Dobyns accused him of defamation. At one point, the agency offered Dobyns $373,000 if he would just STFU. But no. He sued the ATF again for around four million dollars. They sued him back, all indignant about him using Operation Black Biscuit for his own profit, and demanding to know how much he had made off the book No Angel.

Reversal and Trial II (24)

When Danny got back to court, the government verbally offered a plea agreement. He would plead guilty to whatever, and get a 10-year sentence. But Rachel’s conviction had not been reversed yet. Danny told them they would have to (a) stipulate to a summary reversal to speed up Rachel’s appeal (everyone knew her conviction had to be reversed, because his had been). And (b) that she be allowed to plead to a misdemeanor, for time served and no parole. The government said no.

Then a new player stepped into the story. Sean Kennedy, THE Federal Public Defender, asked the judge to appoint him as Danny’s advisory counsel. This wasn’t just any random lawyer. Kennedy heads the largest Federal Public Defenders office in the country, covering seven Southern California counties containing more than 19 million people, and employing more than 150 attorneys and hundreds of support staff, in three offices.

Even though Danny was representing himself, the court and prosecutors tried their best to ignore him. The government continually failed, “inadvertently,” according to them, to send him copies of dozens of documents they were required to serve on opposing counsel. Only Kennedy received them. Danny had the judge issue two orders to the government, requiring them to serve him copies of everything, but they continued to ignore him. When during an appearance just before Trial II he explained this, the judge only shrugged and said, “You need to work closer with Mr. Kennedy.”

Co-counsel Kennedy, meaning well, took over the whole case. Danny continued to be ignored by the government and was not allowed to have “witness visits” or confidential phone calls, or to send or receive sealed mail to or from potential witnesses. His requests for use of a word processor were denied, but sometimes he got to use a cheap typewriter (shared with the other 127 guests in his unit) and a copier that cost 29¼¢ per sheet. A few times a week he was allowed access to a law library equipped with old books. With copies so exorbitantly priced, nearly all of those books had been subject, over the decades, to “research by razor blade.”

Defense subpoenas for anyone outside the seven counties in the Central District of CA require a judge’s authorization. The prosecutor faces no such restrictions, but Judge Lew denied every defense request for issuance of “out of district” subpoenas. Kennedy requested an order to have two in-custody witnesses brought there for the trial. One of them was in the LA County jail, less than a mile away. Both were denied. The government refused to give Danny most of the “discovery” documents that are supposed to be provided to the defense. On two occasions, Kennedy went to the prosecutor’s office to view (but not copy) documents, and was given certain other documents only after signing an agreement that Danny would not be given copies. This situation was explained to the judge, who denied Danny’s motion to be provided with copies. Overall, by letting him serve as his own co-counsel, the court assigned him responsibility for the outcome, without his having a way to adequately prepare for trial.

The vast majority of the pre-trial motions filed by the defense were denied. Most of the motions filed by the government were granted. Danny had testified during Trial I. The government was permitted to pick certain questions and answers out of his Trial I cross-examination testimony and have them read to the jury. The defense was not allowed to have other questions and answers read – they were considered “hearsay” and thus inadmissible. Kennedy’s investigators spent hundreds of hours researching snitch Mike Kramer’s history. They located and interviewed potential witnesses in several states. Many attorneys from the public defender’s office worked with Danny, and dozens of motions were filed and heard.

In August 2008, the court granted the government’s Motion in Limine to Preclude Re-litigation of the Court’s Prior Pretrial Orders and Ruling under the Law of the Case Doctrine. Stay with me, please, because a couple of important points are here. First, faced with the necessity to cope with such a word salad nightmare as “Motion in Limine to Preclude Re-litigation of the Court’s Prior Pretrial Orders and Ruling under the Law of the Case Doctrine,” it is not surprising that many “guests” resign themselves to their fates and become docilely institutionalized, rather than undertake the monumental chore of self-defense. Just the title of that action illustrates how much intelligence and determination it takes to be a jailhouse lawyer.

The prosecution was saying, in effect, “We’ve heard this before, now shut up and move on.” The judge made the requested order. But Danny knew his law. Even if the court has refused to accept a legal argument once, it can be brought up again, if some newer, more recently decided case can be referenced as an example. The prosecution knows this too, of course, but the more motions they can slam the defense with, the more it complicates the process and slows everything down. Danny’s strategies were innovative. He filed a motion to have all of Kramer’s testimony thrown out, along with all the recordings of their conversations, on the grounds that he and Kramer were both ordained ministers of the Universal Life Church, so any communication between them fell under the “priest-penitent privilege.” Naturally, the court didn’t go for that one.

As the summer wore on, the defense demanded that the government produce everything they had about the payments made to Kramer and the benefits he received from being a snitch, including contracts, plea agreements, and anything else that would impeach Kramer’s credibility. The ATF’s Operation Dequiallo, which was Mike Kramer’s “work,” generated at least 173 reports. Kramer made at least 113 recordings. The defense was only provided heavily redacted copies of about 20 of the reports, so marked up and crossed out as to be useless, and parts of about a dozen of the recordings. The judge denied repeated motions to obtain the rest of the sets, accepting the government’s statement that they were not relevant. After Trial II, Danny got a CD with all but about 5 of the 173 reports which, he says, “sure as hell would have been relevant.”

Meanwhile, Rachel’s conviction was finally reversed, and she pled guilty to one felony count and was sentenced to time served. The last in a long chain of incompetent attorneys neglected to ask for her to be released until sentencing, so she spent two more unnecessary months locked up. In July of 2008, after serving more than four and a half years, she was free. One of the conditions of her four years of parole was to have no contact with Danny. A few months later, right before Trial II began, the government subpoenaed Rachel as a witness. She was threatened with being sent back to prison on a parole violation if she refused to be sworn as a witness. She “sort of” testified, by answering all questions of any substance with “I don’t recall.”

Trial II started on September 23, 2008 and lasted four days. The jury convicted on all counts. Still, there were some fascinating and revelatory moments. With such a witness as ATF Agent John Ciccone, how could it be otherwise?

One of the Trial I prosecutors had been Assistant U.S. Attorney Rodrigo A. Castro-Silva. During Trial II, Ciccone outed Castro-Silva as the person who, in 2002, authorized Mike Kramer to own, possess, and carry firearms. (It is, of course, a federal crime for a convicted felon to do any of those things, and aside from his previous convictions, the ATF knew Kramer had committed the Garcia murder.) Ciccone also claimed that this very unorthodox waiver was documented by a written report. Although Danny continues to submit Freedom of Information Act requests for it, that document has never materialized. (One agency said they would need Kramer’s notarized permission. Danny argued that since he went into WITSEC and assumed a new identity, the old Kramer no longer exists and should be considered deceased, so his permission doesn’t matter.) To this day it’s a mystery. Did U.S. Attorney Castro-Silva really authorize a multi-convicted, habitually drunken, meth-addicted felon to own and carry firearms? Or did Agent Ciccone lie about this under oath?

Another high point was the government’s admission that, as of July 2008, they had given Kramer at least $417,000. It also came to light that Kramer hadn’t reported his nearly-half-million dollar windfall to the IRS. Some matters were routine. Among other things, the defense claimed there were chain-of-custody problems with some of the exhibits provided by agents Ciccone and Hamilton and the Drug Enforcement Agency’s chemist.

On the whole, Trial II was pretty discouraging. A DEA expert testified that the 11 grams of methamphetamine taken from the Fabricant home constituted distribution quantity. If the defense could prove the amount was not exorbitant for personal use, and therefore not meant to be sold, this would take away one of the counts against Danny. He wanted to show the jury a CD produced by the Hells Angels, in which he was wired on meth, to demonstrate that it was a reasonable amount for personal use. Kennedy vetoed it as a “terrible idea” and withheld the CD.

In litigation, silence is assumed to be agreement. Objections have to be made by a certain point, or the opportunity is lost. It’s like, “Speak now, or forever hold your peace.” Otherwise, any case could just drag on into infinity. Even though Trial II was theoretically a fresh start and a second chance, the court decided there were some things it was already too late to complain about. For instance, a “simple possession” instruction had been included for the Trial I jury, and was a choice on the Trial I verdict form for Count V, but was omitted this time. The government hadn’t sent Danny copies of the proposed jury instructions, nor the verdict forms they submitted to the court just before the trial. Danny did not see the jury instructions or verdict forms until the trial was nearly over. He then brought up the lack of the “simple possession” instruction and the verdict choice that was available to the Trial I jury, and was told by the judge to “Forget about Trial I.”

Despite the court’s previous order to exclude any kind of evidence about aliases, some was snuck in by the government and admitted as evidence in Trial II. Again, since nobody had objected at the time, it was too damn bad and their own damn fault. Danny was not allowed to be present for sidebar conferences in which, acting as his own counsel, he should have participated. He wasn’t allowed to testify during Trial II. The judge stated that Kennedy would have to ask questions, rather than allow Danny to just speak, under oath. The second jury heard about snitch Kramer’s part in the death of Cynthia Garcia, but Danny was precluded from showing the jury photos of her partially eaten body, as found in the desert.

In Trial II, co-counsel did things Danny didn’t want, and declined to do things Danny wanted, and in general, completely took over. But the official view of such hybrid representation is, “in for a penny, in for a pound.” In other words, it’s all or nothing. If co-counsel is accepted, the pro se defendant is expected to shrug philosophically and be okay with anything and everything. In a later ruling, the government also maintained that no matter what the co-counsel did or did not do during the preparation and conduct of the trial, there’s no way the defendant’s rights were interfered with. This is because the defendant is in jail, and a convict by definition doesn’t have any rights. Only the penal institution has rights.(2)

Almost immediately after Trial II, Danny filed motions for a judgment of acquittal and a new trial. Nearly a year later, the court said no to that. In mid-December of 2009, he filed a motion to re-open the issue of the constitutional validity of his earlier drug convictions. During a hearing prior to the sentencing in Trial I, he had used the government’s own documents to show that he had not received the constitutionally required warnings about “the dangers and disadvantages of self-representation. He wanted to re-argue the issue, but not surprisingly, this was denied.

Co-counsel Kennedy argued that the “dangers and disadvantages” admonitions prior to Trial II were likewise insufficient. The government kept insisting that Danny knew he was facing a life sentence. Perhaps so, but not not a mandatory life sentence. Big difference. At any rate, that dog didn’t hunt. Furthermore, the court also decided that a life sentence, the mandatory minimum, did not constitute cruel and unusual punishment, for the reason that others have been treated just as bad. Really. (3)

A week before Christmas 2009, sentencing was held, and the 60-year-old former Hells Angel was again sentenced to imprisonment for life. Danny asked if he could serve the sentence on weekends. The court’s paperwork says, “Defendant’s verbal request to serve sentence on weekends is denied.” Danny says, “The judge looked stunned. After a minute or so of silence, he came out with a line that probably got a lot of laughs in the judges’ lounge that afternoon – ‘Well, I guess you can serve part of it on weekends, and the rest on weekdays.’”

===================================================

Footnote #1 from Reversal and Trial II

The Court of Appeals put it this way:

“For cross examination to be effective, a defendant must be allowed to adequately explore a witness’s motives and biases. When dealing with an informant, a defendant is entitled to let the jury know how much the witness has to gain by testifying for the government… Here, defendant claims, and the government does not dispute, that Kramer faced a life sentence or the death penalty, and that his penalty was reduced to mere probation because of his cooperation. The jury was not informed of this, nor was the defendant allowed to question Kramer about the details of his crime which, by their horrific nature, would have alerted the jury that the witness would suffer extremely serious consequences if he did not testify for the government… Kramer’s testimony that defendant sold methamphetamine rather than marijuana was largely uncorroborated. The error was therefor not harmless beyond a reasonable doubt. REVERSED and REMANDED.” (U.S. v. Fabricant, 240 Fed.Appx 244 [or] 2007 U.S. APP LEXIS 21874)

Footnote #2 from Reversal and Trial II
(((Gov PDF March 2012 Answering Brief)))
The Sixth Amendment demands that a pro se defendant who is incarcerated be afforded reasonable access to law books, witnesses, and other tools to prepare a defense. United States v. Sarno, 73 F.3d 1470, 1491 (9th Cir. 1995). The right of access is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison. Prison officials may adopt a regulation that impinges on a defendant’s constitutional right if “the regulation . . . is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

Footnote #3 from Reversal and Trial II
from Gov PDF March 2012 Answering Brief
Defendant’s Life Without Parole Sentence Was Not Cruel and Unusual Punishment Under the Eighth Amendment Because Defendant’s Sentence is Not Grossly Disproportional to the Offenses of Conviction

The Court has repeatedly emphasized that “federal courts should be reluctant to review
legislatively mandated terms of imprisonment,” and that successful challenges to the proportionality of particular sentences should be “exceedingly rare.”
In the “rare case”in which the threshold comparison “leads to an inference of gross disproportionality,” the reviewing court compares the defendant’s sentence with sentences received by other offenders in the same jurisdiction, and with sentences for the same crime in other jurisdictions. Id. The Supreme Court’s cases make clear that a finding of “gross disproportionality” is an exceedingly high bar.
See Ewing, 538 U.S. at 28-30 (affirming sentence of 25 years to life under three strikes law for theft of three golf clubs);Harmelin, 501 U.S. at 961, 996 (affirming life in prison without the possibility of parole for possession of 672 grams of cocaine by first time offender); Hutto v. Davis, 454 U.S. 370, 370-73 (1982) (no constitutional error in two consecutive terms of 20 years in prison for distributing nine ounces of marijuana).

How the July and December 2003 Raids Played Out (23)

For a layperson, it’s hard to follow these complicated orgies of retribution because of the immense lapses of time between events, and because the system tends to shuffle people around. Are the charges local, state, or federal, or all three? And that’s only the criminal side. Civil suits are often involved. Once a person is taken into custody, charges can multiply. Charges are laid aside and later resurrected. Some defendants are tried separately and some together.

In the immediate aftermath of the April 2002 Laughlin, Nevada incident, the authorities hadn’t known who to blame for what. Only one person was immediately arrested and accused of anything, and weeks later he was released, at least temporarily. The feds fell back and devoted months to analyzing the casino’s many surveillance videos. On the first anniversary of Laughlin, a local newspaper noted that currently no criminal charges had been lodged against anyone. When the Black Biscuit investigation terminated with the July 2003 sweep, the analysts had still not sorted out Laughlin to their satisfaction. The 40-some people who were grabbed in Arizona in July were only charged based on the Solo Angeles/Dobyns/fake Mongol murder and miscellaneous drug and weapons crimes.

It took a few more months to get the Laughlin ducks in a row for the December 2003 sweep. 42 Hells Angels members, prospects and “associates” were federally indicted, basically for being at Harrah’s Casino when all hell broke loose. The charges included racketeering, conspiracy to commit murder, firearms trafficking, possessing explosives, vehicle theft, etc. No Mongols were charged.

Meanwhile, back in Arizona, a superseding indictment had been obtained, additionally charging 16 Hells Angels, including Augustiniak and Eischeid, with Kramer’s murder of Cynthia Garcia, under the Federal VICAR (VIolent Crimes in Aid of Racketeering) Statute.
Many had already been charged with crimes allegedly committed during the Solo Angeles/Dobyns operation. A VICAR conviction involving a murder carries a mandatory sentence of life without parole (the same sentence Danny has received, twice, which is why we use the terms “overcharged” and “overconvicted” in regard to him.)

Early in 2004 the State of Nevada indicted half a dozen each of Mongols and Hells Angels. There were other charges, but mainly every defendant was charged with conspiring to murder each person who had died in the casino. Which meant the 6 Hells Angels were charged with conspiring to murder their own two dead brothers; and similarly, the 6 Mongols were charged with conspiring to murder, among others, their fellow Mongol.

To compound the Nevada prosecutor’s absurdity, all the defendants were initially required to show up in court at the same time. In a predictable and surely not unanticipated demonstration of solidarity, each group showed up with an army of their club brothers, necessitating the corresponding presence at the courthouse of more than a hundred Las Vegas cops. After a couple of repetitions, the judge wisely decided to schedule the two clubs’ court appearances separately.

Meanwhile, motorcycle enthusiasts made the news when the Mongols and Vagos clashed during a charity toy run, and somebody got shot. Also that year, the city council of Hollister, California voted to cancel the annual 4th of July Motorcycle Run. The town known as the “birthplace of the American biker” had sponsored this event since the late 1940s, but now feared another Laughlin-type incident.

In the Arizona VICAR case, bickering over discovery issues went on for a couple of years. Allegedly, thousands of pages of investigative records, along with photos and audio and audio/video recordings, were still undisclosed to the defense. Apparently, even the prosecutors were kept in the dark about a lot of stuff. Slatella, Ciccone, and other agents had some kind of pissing match going on with the public servants who were supposedly on the same team. After the prosecution repeatedly violated discovery orders, the judge set an “absolutely last” date for compliance.

Plea offers were made to almost everyone in this case. Each offer included a guarantee of no more than a five year sentence, and many were much less. Several Arizona Hells Angels accepted the offers and entered pleas of guilty or no contest to other federal crimes they had been charged with in July, 2003. Part of the agreement required admitting they had acted as a criminal enterprise. Still, that “racket” included only the individuals, not the whole HAMC.

Discovery Compliance day rolled around, and when the remaining defendants appeared in federal court, the government dismissed all the charges against the ones who had not availed themselves of the opportunity to plead guilty. Naturally, the few who had taken the plea bargains were upset, because if they had just waited a bit longer, their charges would have been dismissed too. So then there was more court, as many of them tried to have their pleas withdrawn. Anyway, that prosecution fell apart early in 2006 and didn’t even get close to a trial.

Somehow, amongst all this confusion, Maricopa County, Arizona nevertheless managed to charge Eischeid and Augustiniak, who had not been included in the plea bargaining group, with the murder of Cynthia Garcia. Unfortunately, Eischeid had been in the wind since 2004. Because he was a clean-cut suit-wearing stockbroker and owner of two houses, a judge had let him out on bond and “personal recognizance.” He threw a goodbye party, sawed the tracking device off his ankle, and went missing. Either Eischeid or a fan of his set up a MySpace page that said, “Catch me if you can” and also, “The ladies call me blue eyes . . . I live to ride for the Hells Angels.” He is held up as an example by the people who believe that only commercial bond agencies should be used, because when a suspect skips, at least someone has an incentive to go after the fugitive.

Back in Nevada, 44 defendants (two more had been added, in a superseding indictment) were pending trial. It was decided to split them into groups of 11 and hold four trials, the first starting in October, 2006. The defendants were accused of planning and executing an attack on the Mongols at Laughlin. But the evidence showed that Mongols, pulling out knives and guns, initially converged on Hells Angels. Normally, a defense attorney denigrates any claim made by the police. This time, the defense was happy to point to a Las Vegas police document that said, plain as day, “Intelligence reports indicated the Mongols intended to bolster their status by attacking members of the Hells Angels.” Throughout the trial, Judge Mahan continually reminded the jury not to form opinions about the defendants based on their club affiliation. His biker-positive attitude extended to complimenting one defendant’s shirt.

Proving the motorcycle club to be an organized criminal enterprise was problematic. One difficulty with the racketeering concept is, apparently, the organization doesn’t charge its members very much to belong, and any profits made by individual members belong to them and not the club. The government would like to sell the idea that bar fights are a symptom of racketeering, but as James R. Petersen once pointed out in a Playboy article, “Bar fights are consensual combat… Bar fights are their bowling league.”

Expanding on the cockup mentioned briefly at the end of Section 7… About three weeks into the Las Vegas trial, on a Friday, a former Hells Angel (who called ATF Agent Ciccone after he was kicked out and was signed up as an informant) took the stand. This fellow had been only a prospect when the Laughlin incident occurred and wasn’t even in Harrah’s Casino that night. But he testified for the government for six hours, about overheard conversations between numerous Hells Angels. He also testified that his case agent Ciccone had only paid him $500 and that he had not received any other money from the government. Ciccone sat at the prosecutor’s table during the entire trial and said nothing to anyone about the rat lying. Per the numerous, daily news stories in the Las Vegas newspapers, at the end of the day’s testimony, Ciccone brought “…two steamer-sized trunks… filled with documents into the courtroom, and turned them over to the defense attorneys…” They contained documents whose production had been ordered months earlier.

Over the weekend, the 11 defense attorneys went through the thousands of documents. Among the many surprises they found were ATF receipts and cancelled checks made out to this very same rat, totaling some $80,000. Motions were prepared for filing, first thing Monday morning. Trial had been scheduled to resume Tuesday morning, at which time the irritated judge sent the jury home for the day. Many motions related to the paperwork in the trunks were argued.

The failures of disclosure were characterized by the defense as “flagrant misconduct and withholding crucial evidence.” As one official delicately put it, “The discovery violations led to settlement discussions.” Wednesday morning, everyone was back in court. The judge told the jurors to forget all the testimony they had heard from the rat on Friday, and again sent them home. Thursday morning, the jury was excused from further service. The trial was over. A plea agreement was reached that included the pending Clark County charges of murder conspiracy against 6 Hells Angels. Six of the 11currently on trial would plead guilty to minor charges, with maximum possible sentences of 30 months and all other charges against them and the rest of the defendants would be dismissed.

Once the jurors had been excused, they spoke to the press of how they had picked up on myriad flaws in the government’s case and were “less than impressed” by it. Some members of the panel stuck around to meet’n’greet with the bikers and their lawyers. One Hells Angel asked the jurors to “please accept our heartfelt thanks.”

The government tried to save face by spinning the fiasco as a minor victory and a “good thing.” Nevada U.S. Attorney Daniel Bogden (whose later firing, by the Bush administration, cited his office’s handling of this case) said, “The government concluded under the circumstances that the guilty pleas by the six most active and culpable participants in the crime would best serve justice and the public interest.”

That left 6 Mongols charged in Clark County, with conspiring to murder two Hells Angels and one Mongol. The entire case had been put on hold, by the Nevada Supreme Court, shortly after it was filed. The same court eventually agreed with the defense attorneys’ argument that it made no legal sense to charge everyone with conspiring to murder their own guys.

In the end, the July and December 2003 sweeps, and the “operations” on which they were based, didn’t amount to a hill of beans. From all appearances, there was a certain amount of stuff that the ATF didn’t want revealed. Okay, the price was to let a couple of murders slide, along with some other really bad actions, but that was inconsequential compared to the keeping of important secrets.

Shredded Like Coleslaw (22)

As we know from the fable of the Monkey’s Paw and other folklore, to have one’s wishes granted can be a terrible thing. Imagine a little girl all dressed up, dreaming about her future, thinking, “I wish I can be in the movies some day.” Imagine her ten or fifteen years later, captured on film in a way she never expected, in a nightmare story that proves how you really, really must be careful what you wish for. Too many former little girls now appear in documentary films about imprisoned women.

Most are there for non-violent offenses, as a direct result of mandatory sentencing laws, which stem from the Insane War on Some Drugs. A mother lets a kid borrow the car and sleep on the couch, which translates into letting her vehicle be used in the commission of a criminal act and harboring a fugitive. Or it might be a man who gets her in trouble, even when she doesn’t have a clue about what he’s up to. Answering the telephone can get a person sent away for being accessory to a crime. A woman is susceptible to having her place used to store contraband, and to having drugs planted there by creative law enforcers.

A woman can be held accountable for the actions of anyone she lives with, visits, opens the door to, or even just talks with. Because the laws are so broad and all-encompassing, first-time and minor infractions are inflated into conspiracy. Theoretically, 3,000 people could be convicted for a single drug transaction if they all happened to be in the room when it went down, because even if they never touch the product, each person is responsible for the full quantity involved.

When a pregnant woman’s life falls apart to the extent of incarceration, chances are it was a high-risk pregnancy already. In most states, inmates are not tested for diseases like AIDS that can be passed on to a baby, and don’t even get regular prenatal exams. What they do get is an experience of labor and birth that includes shackles and handcuffs throughout.

Children shouldn’t pick up the phone and hear, “This call is from an inmate.” No kid should have to be writing commendation letters to a judge to try and get Mom out of the Big House. Of the women in prison, more than three-quarters are mothers. The median sentence served by a woman is 60 months. Even if there are relatives, they don’t always have the space or the budget to take in extra kids. If a child spends 15 months in foster care, parental rights can be terminated. Kids are lost to the system and set on paths that guarantee their membership in the next generation of captives. How many women, at a cost of more than $40,000 per year per inmate, are amputated from their families, to devastating effect, while the entire social fabric unravels?

For an ex-convict mother, even if she hasn’t lost the kids, the outlook is grim – no public housing and no food stamps, no job and, if she dares to aspire that high, no financial aid toward education. Women compare this situation to being branded for life. Branded not according to the new meaning, of becoming an identifiable product, but in the old-fashioned sense of being scarred with an ineradicable mark that means eternal alienation from society.

Because of the heavy permanent consequences that threaten entire families, women caught in the legal crossfire become human bargaining chips. Danny says, “The feds will charge a whole neighborhood, take away a hundred people or more. Sometimes you’ll see three generations of a family sitting in MDC-LA, either without bail or on bail set impossibly high, all part of a ‘gang case.’ Meanwhile, their houses are being burglarized by neighbors and former friends.”

Women are pressured to either become government witnesses or never see the kids again until they’re grownups. Men will quickly agree to plead guilty to anything the government desires, in order to get the wives/mothers/grandmothers cut loose, or at least shorter sentences. If you think money and dope are powerful incentives, wait until you’ve seen the strength of motherly love. Imagine the anguish in the heart of any woman caught in this trap, faced with a choice between talking and keeping silent, between betraying other loved ones and losing her kids. This sucks, because families and friends really need to depend on each other. The cynical manipulation of personal ties is a particularly ugly offshoot of the snitch culture, with the attendant erosion of trust and destruction of community.

Convicted and Sentenced (21)

In July of 2004, at the age of 56, Danny Fabricant was convicted of one count of conspiracy to distribute, three counts of distribution, and one count of possession with intent to distribute. Before he was sentenced, he went back to representing himself again. At a hearing in September, the prosecutor who had said life in prison was a maximum penalty, admitted that he “misspoke” and should have said it was the mandatory minimum. In December, there was a hearing about the prior convictions, which shouldn’t be used to make the penalty worse, because in each instance, he hadn’t been advised of “the dangers and disadvantages of self-representation” as required by the Faretta decision. The district court rejected that point of view. Again, a lawyer was appointed.

On February 5, 2005, Danny was sentenced to life in prison without parole. A Los Angeles newspaper pompously announced that his capture was the result of “an ATF, Los Angeles County Sheriff’s Department, Tempe Arizona Police Department and Las Vegas Metropolitan Police Department joint investigation that was prompted by the 2002 Laughlin Nevada casino shootings that resulted in three people dead…” They make it sound like he personally shot somebody, when he wasn’t even there. Ludicrously, the ATF press release stated that 43 listed law enforcement agencies assisted in the investigation leading to his conviction and sentence. Newspapers in each of those cities printed stories based solely on the press release.

Since early 2005, the police had been telling the press how the Hells Angels organization was in a shambles, and slated to lose its clubhouses to the government, on account of being a criminal enterprise. Now, with a former member sentenced, bikers were again a towering media menace. In the ATF press release John Torres, the ATF Special Agent in Charge, said, “Today’s sentencing of Fabricant is a major hit to the Hells Angels Motorcycle Club and adds closure to one portion of this large gang investigation.” In May, Danny went back to representing himself, as he does to this day.

Rachel, since her arrest, had been appointed a series of utterly incompetent attorneys; each of which billed the Court for hundreds of wasted hours “reading documents” and coming to the MDC to try to convince her to become a rat. She told each one to fuck off. And then a new one would be appointed. The attorney who represented her at the first trial had his son-in-law, a private investigator, appointed to “assist” him at a cost of 6,000 taxpayers’ dollars. The job amounted to driving the attorney up to the MDC several times. Since the “assistant” never spoke to any potential witness, it’s not surprising that the attorney didn’t call a single witness during the trial.

Danny describes her charges: “In one of the counts, I had given Kramer one of her checking account deposit slips, to deposit the extra $100 he owed. Another time, he had bought two ounces of hash (which he, as usual, switched for meth) and came by a week later and gave her $800 to give me. That got her charged in two of the counts. She was also charged with the 11 or 12 grams they found when they raided. She hadn’t been at the house for over two days.”

The prosecution mentioned 25 years as an appropriate punishment for Rachel. They were convinced that she knew powerful secrets, and continually badgered her attorneys to try and persuade her to give information about her husband and the Hells Angels. But ratting was not her style, and she had nothing to say. At the age of 23, she was convicted of drug trafficking and conspiracy, and sentenced to just over 8 years.