Alleged bribe could be fodder for Fresno police auditor

Posted by George Hostetter on March 19, 2014 

Fresno Police Auditor Rick Rasmussen appears to have a juicy issue coming his way.

I’m talking about the recruitment of police informants and how the process is regulated.

What is local policy for giving an admitted bad guy something like a get-out-of-jail free card if he turns stool pigeon? More important, who oversees this admittedly clandestine, multi-jurisdictional tool of law enforcement?

I hope you read Pablo Lopez’s excellent A-1 story in Wednesday’s Bee: “Fresno police detective arrested.” To review:

Fresno police detective Derik Carson Kumagai was arrested Tuesday on federal charges that accuse him of taking a $20,000 bribe from a suspected drug dealer.

The 40-year-old Kumagai, a vice intelligence squad detective, and co-conspirator Saykham Somphoune, 40, of Clovis, were booked into Fresno County Jail on charges of conspiracy, bribery and extortion.

“It’s a sad day for the Fresno Police Department,” Chief Jerry Dyer said at a news conference. “... I’m disappointed. It’s cases like this that erode the trust that our citizens have in the Police Department.”

On Wednesday, Fresno lawyer Marshall Hodgkins pleaded not guilty on Kumagai’s behalf. Kumagai on Wednesday was released from jail.

Kumagai has been a Fresno police officer since June 2000. He was with the vice unit for the past 14 months.

Pablo described a complex series of allegations and events.

* Federal agents had been investigating a marijuana operation for about two years.

* The agents learned that Kumagai and Somphoune met several times last fall with a suspected drug trafficker.

* Somphoune in October allegedly told the suspected drug trafficker that Kumagai and others wanted $60,000 in return for ending the investigation.

* Somphoune later in October met a second time with the suspected drug dealer. This time Somphoune had Kumagai with him. Somphoune and Kumagai allegedly gave the suspected drug deal the same pitch — the investigation can be killed if we get money.

* The suspected drug dealer allegedly handed $20,000 cash to Kumagai on Nov. 6.

* Pablo then wrote: “After the bribe was paid, the suspected drug dealer completed documents to become a confidential police informant.”

* Pablo also wrote: “Dyer said Kumagai didn’t have the authority to sign up an informant. According to department policy, Dyer said, the Fresno County District Attorney’s Office must sign off on anyone who wants to become an informant for police.”

The last two points stand out. They suggest that 1.) you must sign a form or two to become an official informant, and 2.) Dyer wants everyone to know that District Attorney Elizabeth Egan is in charge of these forms.

Let’s back up for a second. What is an informant?

I don’t know the legal definition. I’m assuming the conventional wisdom is largely correct.

An informant usually is someone in trouble with the law. This person agrees to tell law enforcement about evil deeds. Law enforcement otherwise would have trouble getting this information. The informant’s legal trouble isn’t a huge sin. The informant’s news helps law enforcement nab someone who is committing a huge sin.

Everyone wins — law enforcement lands a big-time criminal, the informant gets a break at sentencing, society is protected.

What happens here is the creation of an alliance. It consists of a criminal (perhaps of the petty variety), a law enforcement agency, the District Attorney’s Office, a judge. And, as in any alliance, each party has specific responsibilities. If those aren’t met, the alliance collapses.

I read Pablo’s story and thought: If the allegations are true, how would Kumagai and the suspected drug dealer “complete documents to become a confidential police informant”?

I thought: Maybe Kumagai and his fellow officers have a pad of such documents on their desk. The documents are titled something like “Confidential Police Informant, Form 716-A.” (I made that up.) An officer pulls one off the pad (like pulling a Post-It note), grabs a pencil and joins the budding informant in filling all the blanks. Everyone signs and dates on the appropriate lines. Presto, Fresno has another official informant!

Then I thought: No, that can’t be all there is to it. Dyer said District Attorney Egan must put her signature on the form before someone becomes a real informant.

That threw me for a loop. Again, let’s assume that the feds’ allegations are true. I envisioned Kumagai and the suspected drug dealer filling out the Confidential Police Informant form. They get to the end of the form. There, at the bottom, is a line that says “District Attorney sign here.”

I thought: Kumagai must have said to the suspected drug dealer: “Don’t worry about Egan. I’ll get her to sign later.”

And I thought: The suspected drug dealer must have bought it. Why else would he pay $20,000 to become a Confidential Police Informant that would get rid of a two-year investigation into his marijuana activities? After filling out some documents, the suspected drug dealer must have truly thought he was suddenly a Confidential Police Informant.

Then I thought: If it’s that easy — fill out the paperwork and someone instantly becomes an informant — then why is Egan handing out thick pads of “Confidential Police Informant, Form 716-A” (or whatever the documents might be called) to law enforcement officers like they’re peanuts at a ballgame?

After all, as Dyer said at Tuesday’s news conference, the buck stops with Egan when it comes to maintaining the integrity of a legal system that makes frequent use of confidential informants. If this is so, then you’d think Egan would have strong incentive to guarantee that there’s absolutely no chance of anyone becoming an official informant without her knowledge and approval during every step in the negotiations.

In other words, there would be no pad of “Confidential Police Informant, Form 716-A” on every police officer’s desk. That would lead to too much risk for Egan and her professional reputation. There would be too much risk for a rogue officer doing something funny with Form 716-A (or whatever it’s called) and causing all sorts of headaches for Egan, let alone the justice system.

I thought: If there really was something like “Confidential Police Informant, Form 716-A,” then Egan (to safeguard her career) would make sure all such forms were stored under lock-and-key in her office. A police officer who wanted to recruit an informant would have to go to Egan’s office on the 10th floor of the old Del Webb Building in downtown Fresno and officially ask for a Form 716-A. That would set in motion a long list of administrative safeguards (signatures, counter-signatures, periodic status reports to various supervisors, etc.) ensuring that something like what Kumagai is accused of doing (joining the suspected drug dealer in completing documents to become a confidential police informant in return for a $20,000 bribe) would be terribly difficult, if not impossible, to pull off.

This is what I thought as I read Pablo’s story. Then I called Lisa Gamoian, probably the top prosecutor in Egan’s shop, on Wednesday afternoon. And then I chatted with Chief Dyer on Wednesday evening.

I learned that my thoughts about confidential police informant recruitment weren’t that far off base. I also learned that my basic point may be correct — we, the people, remain very much in the dark about the complex world of police departments, district attorney’s offices and confidential informants.

First of all, from the Egan’s perspective, there’s no such thing as “Confidential Police Informant, Form 716-A” or anything like it. The reality is far more interesting.

Gamoian said the process for creating a police informant begins with the bad guy. He is officially charged with a crime. He pleads guilty. He, police and the DA’s Office negotiate a contract. This contract lays out in detail what law enforcement wants this bad guy to get in the way of confidential information in the underworld. Everything goes to court but is sealed so reporters can’t get their hands on it and publicly expose the informant. The bad guy goes to work. He knows he could get a break in court during sentencing if he delivers as he promised. He knows there’s big trouble if he doesn’t. The police and the DA’s Office know their informant system will be productive if they keep their end of the bargain. They know their system is in trouble if they don’t.

Based on what I learned from Gamoian, let’s circle back for a moment to Kumagai. If the allegations against him are true, and he and the suspected drug dealer completed documents that convinced the suspected dealer that he was now an official confidential police informant and therefore was smart to have paid a $20,000 bribe, those documents must have been laughable forgeries. It would be most amazing if Kumagai created an informant contract and written plea bargain of such sophistication that it would past muster as the work of DA Egan and Prosecutor Gamoian.

But what if Kumagai and the suspected drug dealer (again, assuming the feds’ allegations are true) went a different route. And there is a different route, as both Gamoian and Dyer acknowledged on Wednesday.

The recruitment of a confidential police informant must go through Egan’s office if the bad guy 1.) has pending charges against him or 2.) he has a criminal record. The reasons are obvious. Egan’s job is prosecuting bad guys. She’s not going to give a break to a bad guy facing charges unless she’s confident it’ll lead to the conviction of a bigger bad guy. And she’s not going to join forces with an informant whose rap sheet is so long and outrageous that he’d become a blessing to a defense attorney in a court of law.

But what happens if a prospective informant is an average Joe with no pending charges and no criminal background? In this situation, the guy is becoming an informant for money. The police pay him cash instead of dangling the reward of a lighter or suspended sentence. Also in this situation, the police can sign up a confidential informant without any input from Egan, Gamoian or any other person in the DA’s Office.

And in this situation, Dyer said, there really is a form for the prospective recruit to fill out and sign.

There’s other paperwork to tackle, Dyer said. And all of the paperwork must be counter-signed by both a sergeant and a lieutenant, Dyer said. But, he acknowledged, there really is an honest-to-goodness confidential police informant form.

I must admit I was amazed.

Dyer said he had to be careful with what he told me since the Kumagai case is active. Our conversation was brief. Perhaps for those reasons, I don’t think I was very clear in communicating to the Chief my fascination with the blank informant form.

Dyer said the form, once it’s filled out and put in a confidential police informant’s personnel file, is treated with the highest security. But, if I correctly understood the Chief, a confidential police informant form that’s not filled out is viewed as no more risky or dangerous than a blank Post-It note. It’s just a piece of paper.

If I understood the Chief correctly, then either I’m making a mountain out of a molehill or there’s a lapse at the Fresno Police Department in how it handles materials that could be used in ways most detrimental to the department and Fresno’s municipal government.

Again, I go back to Pablo’s excellent story:

“On Nov. 6, 2013, the suspected drug dealer paid Kumagai $20,000 cash, the complaint states.

“After the bribe was paid, the suspected drug dealer completed documents to become a confidential police informant.”

Maybe the suspected drug dealer was presented with a blank piece of paper that said simply “I, the Wizard of Oz, deem you to be a confidential police informant” and, being stunningly stupid, this suspected drug dealer thought that was all it took.

Or maybe the suspected drug dealer was presented with one of those blank “confidential informant” forms apparently found throughout police headquarters and, not understanding the informant-recruitment protocols at District Attorney Elizabeth Egan’s office and not understanding Fresno Police Department informant-recruitment protocols involving sergeant-lieutenant counter-signatures, figured the completion of the form was all it took to make him a confidential police informant, stop dead in its tracks a two-year investigation conducted by the toughest federal drug investigators in the nation and deem a $20,000 cash bribe allegedly paid to a sworn police officer to be a wise and prudent investment.

Let me emphasize: Vice intelligence squad detective Derik Carson Kumagai and Saykham Somphoune are innocent until proven otherwise in a court of law.

I also emphasize that human nature is often mysterious.

But I can’t help wondering if the Fresno Police Department could have avoided this particular mess if it hadn’t treated blank forms with immense potential power so cavalierly.

Perhaps Rick Rasmussen will educate me.

 

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