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When asked at the same hearing about an explanation for the missing video recording of an August 6, 2010 interview with the Ayesh brothers, Fleming replied that he didn't follow policy because he was pressed for time. "I have a high caseload, multiple cases I'm investigating at one time, and I just didn't make them at the proper time on that particular incident," Fleming told the court.
Fleming's case notes, which were signed by Captain Brian Medeiros, who was then a lieutenant in charge of homicide investigations at OPD, state that he submitted video recordings of the interviews to the property section on April 11, 2011. The notes do not elucidate which recordings were filed into evidence.
While there is no indication that Sergeant Fleming intentionally misplaced the photo arrays and the recording of the August 6, 2010 interview, experts say the absence of such evidence casts doubt on the underlying basis for charging a defendant. "If procedure breaks down completely, as it did during this case," said Hastings professor Faigman, "one would naturally be suspicious about whether the underlying witness statement is valid."
In order to plug the gaps created by chronic understaffing and the misallocation of resources, OPD has enlisted the aid of federal law enforcement to conduct long-term probes and operations targeting gang activity and firearms trafficking. These cases represent the best police work done by OPD, but would be impossible without federal assistance with wiretapping equipment, cash, additional staffing, and trace-evidence work on weapons. "These enforcement collaborations are essential for the Department due to OPD's fiscal restraints and insufficient staffing," read Chief Jordan's September 11, 2012 report to the Oakland City Council.
A combined operation in 2010 between OPD and federal law enforcement targeting weapons trafficking is one of the best examples of how federal assistance with staffing, technical expertise, and financial resources brings out the best in Oakland policing. In January 2010, Drug Enforcement Administration agents based in Oakland learned from an informant about a young West Oakland Norteño — Luis Cardenas-Morfin — who was making a name for himself in town by selling heroin, crystal methamphetamine, and guns.
Then 21 years old, Cardenas-Morfin was already known to OPD for his part in the January 11, 2009 shooting of Abraham Gomez in front of Comalapa Restaurant on 7th and Chester streets. According to police reports, Cardenas-Morfin shot Gomez in the leg in front of the restaurant after calling Gomez a "scrap," a derogatory term used by Norteños for members of the rival Sureño gang. Gomez picked out Cardenas-Morfin as the shooter in a photo lineup shown to him by Officer Robert Trevino. Cardenas-Morfin pled guilty to the shooting and was sentenced to five years' probation.
The DEA opened an investigation into Cardenas-Morfin's activities and brought in Oakland Police Officer Eric Milina, a nineteen-year veteran who spent fifteen years in the city's Fruitvale district as a patrol officer and then with OPD's gang task force. On February 3, 2011, Milina was introduced to Cardenas-Morfin by a DEA-paid confidential informant. Milina and the DEA informant posed as mid-level dealers in drugs and firearms who were looking for a new supply line.
After the initial meeting, Milina met with Cardenas-Morfin several times. Using federal money, Milina worked his way up from deals for one or two ounces of crystal meth and heroin to purchasing firearms from the Norteño in so-called "controlled buys," which were recorded by DEA agents and OPD officers monitoring the transactions through hidden microphones.
In an interview, Officer Milina told me that he was struck by Cardenas-Morfin's efficiency, punctuality, and business-like approach to the deals. "He was organized, squared away, timely, which is unusual for drug dealers. He was level-headed and articulate," said Milina. "For a young man like that, if he'd put his energy into something good, he'd have been successful."
During the buys, Milina bought 19 ounces of high-purity crystal meth, two ounces of low-grade black tar heroin, and eighteen firearms from Cardenas-Morfin for $47,935, all of which came from federal anti-drug funds. The guns sold to the undercover officer included six semi-automatic pistols, two pistols, seven assault weapons (two AR-15s, two AK-47s, a Ruger mini-M14 rifle, a MAC-10 automatic pistol, and a 90-round drum magazine for the AR-15), and a Mossberg 12-gauge shotgun. "When he brought the guns in, he'd sell them pretty quick. I'm sure he had a pretty good profit margin on the weapons," said Milina.
Court documents detail Cardenas-Morfin telling Milina that he had two or three steady customers for firearms in San Francisco and Oakland. In one conversation with Milina, Cardenas-Morfin indicated that he had brought thirty firearms with him from his last trip out of state and already sold twenty of them. "It was an eye-opening experience to see how easy it is to buy high-caliber weapons, and where the supply comes from," Milina told me.
Of the weapons Milina purchased from the Norteño, four were traced by ATF personnel to Nevada, one to Vermont, six to Arizona (including two AK-47 assault rifles), one to Georgia, and two to Southern California. "In Nevada, if you have a state-issued driver's license, you can show it to a vendor at a gun show and walk away with a weapon. And Reno's only four hours away," Milina noted.
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