Biscayne Park’s Slam Dunk

Former Biscayne Park Police Chief Raimundo Atesiano wanted to keep the mostly white suburb of Biscayne Park under control during his tenure, and part of that meant closing every crime, no matter what. So his small police force of 12 did just that.

The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.

Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records.

As a result of their cooperation, Atesiano was prosecuted and pleaded guilty. But the cooperation also required Dayoub and Fernandez to plead guilty for their role in the scheme. Even though they were no longer police, they were cooperators, and so the government tried to do what incentives mandate, reward them for their efforts, asking the court to impose sentences of eight months home confinement on Dayoub and one year’s probation on Fernandez. United States District Judge K. Michael Moore said “no.”

Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.

“It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”

This is a shocking turn of events, not so much for the nature of the crimes they committed or the damage they caused to others, but because their turning snitch, cooperating with the feds, is the foundation of criminal prosecutions. Do they not get the payback expected?

The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time.

While cooperators invariably testify that they were doing so because they came to the epiphany that what they did was wrong and now were of the purest heart, snitching only because they wanted to tell the truth and make up for their misdeeds, it’s just a line. They want payback. It’s possible that they are doing the “right thing” for sincere reasons, and in this particular case, it may even be probable. But they still expect payback.

The judge wasn’t having it.

Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge.

But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”

The feds have become utterly reliant on cooperation, whether to make their case or just to facilitate pleas because the evidence is so vastly overwhelming that no non-nuts defendant would possibly go to trial knowing that there was no chance whatsoever of prevailing. Where AUSA Harry Wallace claimed he was faced with a “Hobson’s Choice,” the judge called it a “slam dunk.”

Whether the judge is right is hard to measure, as cases always look like slam dunks from the outside, after everyone pleads guilty and allocutes as to their actions. It isn’t necessarily as obvious when there are no cooperators, no one on the inside confessing their crimes, explaining how and why things were done. Whether this was a case that required snitches, such that Dayoub and Fernandez made the case or merely made the case easier, may never be known.

But what was known, and clear, is that two cops, one a 30-year veteran, broke ranks by revealing what was happening in their department and then ratting out their chief.

Fernandez, a 30-year law enforcement veteran in South Florida, was particularly candid in court papers about a “culture of fear and reprisal” created by Atesiano while he was the chief of the dozen-member Biscayne Park police force in 2013 and 2014. Fernandez wrote a letter to the village’s new manager in early 2014 that exposed Atesiano’s misconduct and led to his resignation that year.

“Mr. Fernandez was haunted by what was happening within the Biscayne Park Police Department,” Fernandez’s defense attorney, David Sobel, wrote in a court motion seeking a 12-month probationary sentence. “Atesiano was so focused on having a 100% clearance rate that he was enlisting his officers to make ‘bad’ arrests and to harass people of color who were seen anywhere within the city.”

Of course, Fernandez wasn’t haunted enough not to do it in the first place, even if his subsequent change of heart suggests he regretted his actions. But the sentence imposed, one year in jail, was under the reduced misdemeanor charge, as opposed to what would have been faced had they not cooperated.

The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.

Had they not cooperated, they would have faced the felony charge and substantially more time, so even though the expectation might have been a  no-jail-time sentence, it’s not as if they didn’t receive a benefit for their cooperation. One year beats two, or five or ten.

It’s important to note that these weren’t just the usual perps, but police officers abusing their authority, their power, at the expense of innocent black men. It’s their duty to enforce the law, honor the Constitution, and how much of a reward do they deserve for cooperating when that’s their duty in the first place?

And yet, federal prosecutions are so dedicated to incentivizing snitches that any time a judge refuses to give the cooperator the benefit expected, the feds see their prosecutorial empire crumbling. How will they ever make cases if the expectation of cops walking away from their crimes is crushed?

8 thoughts on “Biscayne Park’s Slam Dunk

  1. Guitardave

    He had a ‘change of heart’? Yeah. ….so the ‘heart’ was a OK for 11 years of ruining lives, keepin the ‘peace’, and one day the ever thumpin’ love muscle says, ( read this like Chris Rock has the part ) “hey, Raul, I’d feel a lot better and gooder if we could exchange that threat of spending 10 years with people you’ve wrongfully imprisoned for fresh coat of white wash and a get-outa-jail-free card?….whatdyathink?…ya in?”
    If only all “matters of the heart” were such easy choices.

  2. Skink

    “How will they ever make cases if the expectation of cops walking away from their crimes is crushed?”
    With work, just like everyone else. But it’s becoming a lost art.

    I guess the chief never learned that exceptional clearances clear the books without much of a threat of redress. Cases closed without an arrest don’t have victims. That’s part of what made this an easier prosecution. If the juvenile wasn’t arrested, the SAO wouldn’t have picked up on the anomaly in the language of the reports, which is kind of hard to believe given all the boilerplate reports. Shit, they might as well use drop-down boxes. But the fact of arrest and nolle pros put a big neon sign on it for civil rights lawyers (don’t start thinking some AUSA got there on his own).

    This setup would never be lost on a judge like Moore. He’s the chief judge in a district known for crustiness. With many going senior, he is the longest-serving. He was an AUSA and chief for a long time. It might be hard to believe, but he expects lawyers to do their jobs. Bullshitting him is not a recommended tactic.

    1. SHG Post author

      There’s a kicker in there, “he is the longest-serving,” meaning he was an AUSA before Mistretta when the line formed outside the US Attorney’s office. Younger federal judges today never had to prosecute in a world where every case didn’t involve a snitch, where the cops/feds had to actually solve cases, and prosecutors had to try cases based solely on evidence to get their conviction. This old world is a complete mystery to AUSAs and baby federal judges today, as they never practiced in a world that wasn’t dependent on CIs.

      Moore might not put up with the bullshit, but he’s a dinosaur. It won’t be long before the “art” is completely lost as us dinosaurs can’t live forever and the baby judges never know a world where every case wasn’t made by a snitch, who have to be paid for their services if “justice” is to prevail.

        1. SHG Post author

          In fact, there will be, as there will be no one left with the institutional memory of how we got where we are.

      1. Nemo

        Whether Moore is a dinosaur or not is beyond me, but I seem to recall someone expressing a certain skepticism regarding the whole “death of the courtroom trial” thing.

        Not my place to judge the experts, but it seems rather difficult to this guy to square the seeming lack of concern on the one point with the seeming concern on the lack of the first point WRT the second point.

        I’m just a groundling, so perhaps the lack of judges with trial experience isn’t due to a lack of, y’know, actual trials where lawyers and judges practice law. That’s for those in the trenches to decide.

        That is, for as long as there are lawyers actually in the trenches, and the role hasn’t been entirely shifted to the negotiation room, with all the change implies.

        Regards,

        Nemo

        1. SHG Post author

          You might have read that “certain skepticism” very wrong, so before you put words in other people’s mouths, try not to get it ass backwards. That said, you’ve misread this comment as well, as it has nothing to do with judges having trial experience, but experience of the system before the Sentencing Guidelines. Sometimes, best to stay out of the autobahn’s left lane when your Yugo can’t go over 25 mph.

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