A battle over access to the personnel records of two federal agents involved in a recent undercover sting operation swung toward the prosecution Thursday, even after defense attorneys claimed the ruling could result in a mistrial.
Attorneys representing five suspects nabbed in the federal government's operation, which was designed to capture the Las Vegas Valley's most violent criminals and drug pushers, contend an agent is seen smoking methamphetamine and marijuana in surveillance video.
Representatives with the public defender's office argued Thursday they should have access to the agents' personnel records to determine whether they include exculpatory information that could be used during the trial.
Assistant U.S. Attorney Paul Padda said that the records were reviewed by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives and that no impeachment evidence was present. Therefore, Padda said, the files do not have to be turned over to the defense.
Public Defender Lisa Rasmussen said the ATF should not review its own agents' files. She asked that the prosecutors look over the records, a request that was denied by U.S. District Judge George Foley Jr.
"There is a historical problem with the ATF not giving over evidence to the government," Rasmussen said.
She likened the situation to the Hells Angels prosecution that was declared a mistrial in 2006. U.S. District Judge James Mahan tossed the case when he learned the prosecution had not turned over all of the evidence to defense attorneys. The missing evidence were videos that were supposed to be supplied to the government by the ATF.
"There are significant issues with the investigation from what we've seen on the video," Rasmussen said.
The ATF embarked on a 15-month investigation dubbed Operation Sin City Ink in January 2006, opening a tattoo shop in a tiny strip mall at 2640 Highland Drive. Agents Mark Gomez and Peter McCarthy oversaw the operation.
The agency recruited jailed gang members to spread the word that the owners of the tattoo shop, called Hustler Tattoo, were dealing drugs and firearms in the back office of the business.
Alfredo Flores, one of the five men who appeared in court Thursday, visited the storefront in April and arranged to sell the undercover agents two grams of methamphetamine, according to the prosecution's complaint against Flores. Flores told the agents he had a "crew" that was interested in doing "work."
ATF agents asked Flores whether he was interested in robbing a cocaine stash house in May when a large delivery was expected from Mexico.
"Flores replied that he had the ability to conduct the robbery and that his crew would 'hit them hard,' and that when they hit the stash house that they will be coming 'ready for war,'" according to the complaint.
In May, the agents and suspects organized a hit on the stash house, according to documents. When they arrived at the location, ATF agents descended on the home and arrested 10 suspects.
After the operation wrapped up, the government turned over more than 100 surveillance discs that included audio and video of activities at the tattoo parlor.
The public defender's office filed court documents alleging that an undercover agent thought to be McCarthy was seen in a surveillance video "smoking methamphetamine, smoking marijuana, snorting a substance into his nose."
In most cases the agent is captured on video, he is in the office by himself, according to the documents.
In one video, Gomez is seen walking into the office and telling McCarthy that he "really needs to stop smoking that (expletive)."
"This undercover sting operation resulted in various arrests pertaining to drugs and guns," according to a motion signed by public defenders Shari Kaufman and Rasmussen. "It goes without saying that it would be inappropriate for the agents of the Bureau of Alcohol Tobacco and Firearms to be using drugs that they are purchasing from targets, suspects and/or defendants in this case.
"Even more inappropriate is the possibility that the agents are negotiating firearm transactions and handling firearms while under the influence of narcotics."
According to court documents, government officials said the substance used by McCarthy in the videos is a fake narcotic that the agents obtained at a conference.
The sting operation was not only a surprise to the suspects but also to the neighboring business, The Lunch Stop.
Restaurant workers, who asked not to be identified, said the tattoo parlor was open only at night. They noticed beer bottles and cans that littered the parking lot behind their shop but never grew suspicious of the activity next door.
"People with tattoos have that reputation, so we didn't think anything of it," one woman said.
The employees never thought it was odd that the tattoo shop was open only at night.
"It's Vegas," shrugged one worker.
Christopher Sangalang, Deandre Patton, Roderick Jones, Flores and Robert Williams, five of the 10 men arrested in the sting, appeared in court Thursday.
They are scheduled to go to trial in December on charges that include possession of unregistered weapons and possession of illegal drugs.
Contact reporter Adrienne Packer at email@example.com or 702-384-8710.