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Gangsters'
sentences might be commuted
Governor OKs commuting state sentences only if gang leaders serve time
in federal prison
Monterey County
Herald | July 7, 2005 Thursday
Copyright 2005 Monterey County Herald. All Rights Reserved. Posted with
permission.
By JULIA REYNOLDS, Herald Staff Writer
The nearly decade-long federal racketeering
prosecution of the Nuestra Familia prison gang's leaders is at risk of
ending up back in federal court, even though the final five defendants
pleaded guilty last fall.
The five leaders -- James "Tibbs" Morado, Joseph "Pinky"
Hernandez, Gerald "Cuete" Rubalcaba, Cornelio Tristan and Tex
Marin Hernandez -- had been set to start life sentences in federal prisons,
but their state sentences must be commuted first.
In a letter sent Tuesday to the state's Supreme Court, Gov. Arnold Schwarzenegger
recommended commuting the life sentences of the five, but he attached
a condition that could ultimately allow the five to withdraw their guilty
pleas.
"Nothing short of the certain lifetime incarceration of these individuals
in federal prison without any possibility of release or parole is acceptable
to me," Schwarzenegger wrote.
He recommended commutation "on the condition that if any of these
individuals are ever approved for release from federal custody for any
reason during his lifetime, such commutation order as to that individual
becomes void and the respective state prison sentence(s) be immediately
reinstated."
"I'm not surprised by this," said San Francisco attorney Gil
Eisenberg, who represents Morado.
The condition was added despite strenuous objections of federal prosecutors.
It came about because several California district attorneys were concerned
about losing state control over the inmates, envisioning scenarios in
which the five could disappear into the witness protection program or
become eligible for federal parole if it is brought back. Parole in the
federal prison system was abolished in the mid-1980s.
Assistant U.S. Attorney Anjali Chanturvedi dismissed those concerns at
a Sacramento hearing last month, saying federal parole is unlikely to
return without an act of Congress.
In fact, there is currently such a bill on the House floor, HR 3072, which
proposes bringing back parole in response to years of harsh federal drug
sentences. Similar bills have failed over the years.
The plea agreements for the Nuestra Familia leaders were hastily drawn
up the night before opening arguments were set to begin, according to
Chanturvedi. She acknowledged the agreement never addressed the prospect
of parole coming back.
In the plea bargains, the defendants did not agree to "conditional"
commutations, and that is the detail that could give them grounds to back
out of the deal.
Whether to withdraw the agreements "will have to be considered by
the individual defendants," said Eisenberg.
"I can't say it's impossible, but I just don't know yet," he
said.
If the five withdraw their pleas, the case will have to go to trial in
federal court, according to Chanturvedi.
Some California prosecutors and attorneys have said the government rushed
to get the plea agreements because it wanted to avoid a trial at all costs.
The case was tarnished by questions over the credibility of informants
who continued to commit crimes while working for the FBI.
After years of delays and a cost of an estimated $15 million, the case
was considered all but closed last fall when the last of 22 original defendants
pleaded guilty.
The governor's recommendation will be considered in coming weeks by the
state Supreme Court, and its decision to commute or not will be sent back
to Schwarzenegger's office.
If commutation is denied by the court, the state's involvement in the
matter ends there, according to Schwarzenegger's office. If the court
approves commutation, the governor will still have the final say.
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