Bid to sideline federal judge for being too tough on SF fentanyl dealers
A federal judge’s dogged refusal to impose sentences he views as “too lenient” on illegal aliens caught dealing fentanyl in San Francisco’s Tenderloin has earned him a rebuke from a federal public defender – and a demand that he recuse himself from the forthcoming sentencing of a host of admitted dealers.
If U.S. District Judge William Alsup fails to withdraw from overseeing the cases against Marco Diaz-Cruz, Olvin Navarro and David Escoto-Canacas, says defense attorney Jerrod Thompson, then he will ask another judge to order his removal. Alsup scheduled recusal hearings in the cases of two of the defendants this morning.
The move comes on the heels of decisions by piqued federal prosecutors, in similar cases where Alsup decided that plea agreements were too lenient, to terminate prosecutions entirely rather than have him continue to oversee them.
The dispute stems from Alsup’s opposition to a novel “fast track” scheme developed by the local U.S. Attorney’s Office in order to remove and deport dealers from the Tenderloin. The scheme is required because local ‘sanctuary’ policies forbid law enforcement from cooperating with immigration authorities in most instances.
It leaves the embattled judge – whose tough-on-crime approach, by San Francisco standards, has left him unpopular in some quarters – facing being sidelined entirely from a slew of critical criminal cases.
Marco Diaz-Cruz was arrested by FBI agents on November 6 2023 having been witnessed conducting ‘hand to hand’ drug sales at the intersection of Eddy Street and Polk Street – a location overlooked by the FBI’s thirteenth floor office in the Phillip Burton Federal Building one block away. He was carrying fentanyl, cocaine, crack cocaine and methamphetamine.
Diaz-Cruz appeared in court on December 12 at which defense and prosecution attorneys anticipated that he would plead guilty, the court would impose a ‘time served’ sentence, and he would then be immediately handed over to officials from U.S. Immigration and Customs Enforcement for deportation.
This was in accordance with a “fast track” scheme devised by federal prosecutors to remove foreign national – typically Honduran – drug dealers from the city’s streets and have them deported as soon as decently possible. Inaugurated in late summer 2023 the arrangement has seen federal court dockets packed with cases in which defendants have gone from being arrested to being sent for deportation in just over a month.
Shortly after the case was called, however, the judge expressed his misgivings about the plea agreement he was being asked to endorse, insisting that he would adhere to normal sentencing procedures and guidelines.
Calling the proposed sentence of just-over-a-month in jail plus deportation “ridiculous” Alsup set out his stall on how he saw drug sentencing.
“I am convinced that prison time and strong measures are necessary to deal with the fentanyl crisis,” he said. “It’s killing people. Two people a day in San Francisco; two people, within a few blocks of this building probably. Two people a day are dying on account of drugs that, if [Diaz-Cruz] weren’t in custody now, he’d be out there selling.”
“If you want to argue for leniency, God bless you,” Alsup told Assistant U.S. Attorney Jeff Bornstein. “But when the day comes for sentencing, I’m going to do what’s right under [sentencing rules] and not what is politically correct in your office.”
“He will have a penalty hanging over his head if he comes back to this country,” Bornstein assured the judge.
“If. But he ought to have a penalty now, not an ‘if-he-does-it-again’ type penalty – no,” Alsup replied.
“If you guys want to abandon your [plea agreement] go ahead, but I’m not going to be part of an extremely-soft-on-crime approach.”
The trajectory of the hearing later provoked federal public defender Jerrod Thompson to file a motion demanding that Alsup recuse himself.
“The Court’s comments at the December 12 hearing demonstrate the Court’s prejudgment of facts pertaining to the appropriate sentence in this case,” he wrote.
“The Court’s comments, both alone and in combination, demonstrate that this matter must be reassigned to ensure that Mr Diaz-Cruz will be afforded fundamentally fair proceedings before a neutral arbiter, as required by due process. Additionally, the Court’s comments demonstrate that its ‘impartiality might reasonably be questioned’…and constitute actual bias.”
“The court’s comments throughout the hearing reflected prejudgment, bias and reliance on extra-record personal views and stereotypes, warranting reassignment.”
“A trial court may not insert itself into settlement negotiations…Nor may a trial court preemptively comment on the type of plea agreement it would accept.”
“This court, without prompting by either party, preemptively asserted that it would not consider allowing Mr Diaz-Cruz to obtain the benefits of the government’s new ‘fast track’ resolution program for fentanyl sales cases, and that it intended to impose a prison sentence on Mr Diaz-Cruz. The Court’s statements that the ‘fast track’ agreement was ‘more soft on crime,’ that it intended to ‘go with the guidelines,’ and the Mr Diaz Cruz would be sentenced to ‘prison time very likely’ constitute both prejudgment regarding the appropriate sentence, and violation of Rule 11, warranting reassignment.”
At the hearing Alsup told attorneys that he would cast his eye carefully over any Government move to dismiss the case in response to his approach.
“If you move to dismiss,” Alsup told Bornstein, “that’s your right. But it’s my right to say ‘no’ if it would be against the public interest. And I will not dismiss this case until the Attorney General tells me he knows about this program and he knows how it is being applied in this district to let fentanyl dealers off the hook.”
In previous cases where the judge has balked over unduly lenient treatment the government has done precisely that – preferring to terminate prosecutions than have the cases continue before the judge, in effect ‘reverse judge-shopping’ their drugs cases.
Indeed one of the first ‘fast track’ cases – that of El Salvador native Santiago Gonzalez-Gonzalez – went off the rails when Alsup pointed out that he had been found with more than half a pound of fentanyl and had a rap sheet featuring convictions for battery, false imprisonment and burglary. Absent the fast track scheme, Gonzalez-Gonzalez would have been facing a federal prison term of between 70 and 87 months. As a beneficiary of it, he would have served just over a month before deportation.
“I find it hard to believe I could give such a lenient sentence,” an astonished Alsup said.
“In an easier case, even against my better judgement, I might go along with the leniency of the U.S. Attorney’s Office, trying to get drug dealers out of the Tenderloin, but on a case of this seriousness I just can’t do it.”
In response the U.S. Attorney’s Office refused to continue the prosecution of the dealer, opting instead to dismiss the case against Gonzalez-Gonzalez and leave by the wayside the careful investigation in to his narcotics sales undertaken by Drug Enforcement Administration agents.
Similar circumstances have arisen in cases involving several other drug dealers before Alsup which have also resulted in recusal motions being filed – all of which are due to be heard on February 13 2024.
It remains to be seen whether the judge will decide the recusal issue himself or decide pass the decision to another judge. Jerrod Thomson is adamant in his recusal motions that he is entitled, should Alsup not step aside of his own volition, to take his case before a randomly-assigned judge for consideration.
At a hearing today on the Marco Diaz-Cruz and Olvin Navarro cases Assistant U.S. Attorney Jeff Bornstein, prosecuting Diaz-Cruz, told the court that the Government would oppose the defense’s motion to recuse. He gave no indication, though, about whether they would seek to dismiss the case.
“We’re going to oppose recusal,” he told Alsup today. “We obviously have a difference of opinion with you on our program but we don’t believe that you are biased, prejudiced or otherwise subject to recusal.”
On December 12 Borenstein acknowledged that these cases are not ones that would usually attract the attention of federal authorities.
“These people were not held accountable in the last four years for what they were doing, and that’s why things have gotten so bad. And we are trying to make a difference.”
If Alsup recuses himself, or the decision is made for him, then the cases would be assigned to a different judge. Another potential “fast track” case heard this afternoon – of Karen Morazan-Barela – illustrated the marked differences of approach between judges.
“I know we are getting some minority of judges asking for a PSR [pre-sentence report] and some are refusing to participate in the program at all,” said U.S. District Judge Vince Chhabria.
“Would it be useful, for us as judges, to put together a document for you all which lists each judge and which information they need to go forward on these fast tracks?” he asked in response to questions from attorneys about his preference for information before proceeding with a fast track case.
The cases continue.
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