As a paid informant for the Drug Enforcement Administration, Guillermo Francisco Jordan-Pollito has achieved a remarkable record of success.
Over the last 10 years, according to his own testimony in Los Angeles federal court, the former Mexican police officer has earned more than $350,000 helping the DEA put together more than 80 cases against suspected sellers of cocaine, methamphetamines and other illicit drugs.
There's just one thing missing from that picture. The DEA's star undercover operative used a stable of his own paid informants to assist him in setting up drug buys, a fact that was kept from defense lawyers in an undetermined number of those cases.
The failure of federal prosecutors to disclose that information has resulted in a sharp rebuke from a federal judge and the dismissal of charges against three defendants. And more legal challenges are in the works, including one that will be heard today by another federal judge in Los Angeles.
Ronald O. Kaye, a former federal public defender now in private practice, uncovered Jordan-Pollito's use of "sub-informants" last year after combing through telephone records turned over to him by federal prosecutors in a methamphetamine-trafficking case.
The prosecution contended that the sub-informant in Kaye's case had done nothing more than introduce Jordan-Pollito to the three defendants. But Kaye was able to show that the sub-informant, Jose Agapito Gomez, made 29 telephone calls to the defendants during a one-week period leading up to their arrests. The defense attorney also documented 68 calls between Jordan-Pollito and Gomez during the same period.
After hearing arguments from both sides, U.S. District Judge Florence-Marie Cooper ordered the government to disclose the names and file numbers of all cases in which Jordan-Pollito or Gomez had been employed and how much they had been paid.
When the prosecution refused to do so, Cooper tossed out the indictment and ordered the defendants freed.
"The government's representations regarding the use of confidential informants in this case have repeatedly proven to be unreliable," the judge stated in a strongly worded opinion. Cooper said that either the government did not know about the sub-informant's existence, which she called "highly unlikely," or the government deliberately lied to the defense.
If the government did not know, she went on, then its ability to monitor the activities of its undercover informants has been seriously compromised. And if the government did know and withheld the information from the defense, "that is an even greater evil," the judge wrote.
Cooper said it appeared at first that an entrapment defense was not feasible, because there were so few contacts between Jordan-Pollito and the defendants, and those tape-recorded encounters showed no pressure being applied by the DEA informant.
But the series of phone calls by the sub-informant to the defendants, which were not tape-recorded, supports "an inference that pressure was being brought to bear by the sub-informant, which could have been used to support an entrapment defense."
"A law enforcement agency must not be allowed to shield itself from accountability by hiring someone outside of law enforcement who is free to violate citizens' rights," she said.
The U.S. attorney's office in Los Angeles would not comment on Cooper's ruling except to say "the government takes its discovery obligations very seriously and endeavors to meet its legal and ethical obligations."
After the judge's ruling, prosecutors said they intended to challenge the decision before the U.S. 9th Circuit Court of Appeals. But last week, the government withdrew its notice without explanation.
Kaye and defense attorney Paul Potter are scheduled to appear today before U.S. District Judge Dickran Tevrizian to seek a new trial for two other defendants convicted as a result of a drug-trafficking sting involving Jordan-Pollito and Gomez.
In that case, which was decided a few weeks before Cooper's ruling, Jordan-Pollito and Gomez were both subpoenaed by the defense. Jordan-Pollito said it was the first time he had ever been called to testify in a case.
Questioned on the stand about his background, the 33-year-old informant said that when he was 20, he became a police officer in the Mexican state of Colima and was assigned to a detail investigating the chief of police there. After a threat against his life, Jordan-Pollito said, he fled to the United States, settling in Santa Ana, where he worked for a time as a security guard before becoming a DEA informant.
He said he had never told his DEA handlers that he was paying other parties to set up cases and that the agents had never asked. He also said he had used Gomez about 10 times, paying him only "if the cases worked out." But Gomez was by no means the biggest producer in his network, he added.
The DEA operative said he had earned more than $350,000 from his work with the agency, a figure confirmed by government officials.
All the payments were in cash.
Jordan-Pollito also acknowledged having received an additional $50,000 as an informant for the FBI; the Secret Service; the Bureau of Alcohol, Tobacco and Firearms; the California Bureau of Narcotic Enforcement; the L.A. County Sheriff's Department; and the Santa Ana Police Department. He admitted that until recently, he had not paid income taxes on any of the money.
In court papers asking Tevrizian to order a new trial, Kaye accused the prosecution of misconduct by withholding evidence of 52 telephone calls from Gomez to the key defendant in the case over a three-week period leading up to the arrests. The defense lawyer also quoted sections of Cooper's ruling criticizing the government's conduct.
In a reply brief, Assistant U.S. Atty. Beong-Soo Kim said that the jury had considered and rejected a defense claim of illegal entrapment, that the telephone records had been explored at length during the trial and that the "new" evidence offered by the defense was old hat.