Banging on a Gate: Pam Bondi Found a Cyber Investigator Who Doesn’t Check Phone Logs!

Less than three weeks ago, Pam Bondi’s DOJ got admonished by a Magistrate Judge for charging first, investigating latter.

When dismissing Ras Baraka’s charges on May 21, Magistrate Judge André Espinosa scolded the AUSA present — and by proxy, DOJ — for arresting Newark’s Mayor before doing basic investigation.

The hasty arrest of Newark Mayor Ras Baraka, followed swiftly by the dismissal of these trespassing charges a mere 13 days later, suggests a worrisome misstep by your Office. An arrest, particularly of a public figure, is not a preliminary investigative tool. It is a severe action, carrying significant reputational and personal consequences, and it should only be undertaken after a thorough, dispassionate evaluation of credible evidence.

It’s precisely that commitment to rigorous 19 investigation and thoughtful prosecution that has 20 characterized the distinguished history of your Office, Mr. Demanovich, particularly over the last two decades. The bench and the bar have witnessed in that period, the diligence and care demonstrated by prior U.S. attorneys in New Jersey, whose leadership has consistently upheld the highest standards of prosecutorial ethics and professionalism. Their legacy is one of careful deliberate action where charges were brought only after exhaustive evidence gathering and a thorough consideration of all facts That bedrock principle, consistently honored by your predecessors, is the foundation upon which the credibility and effectiveness of your Office rests.

So let this incident serve as an inflection point and a reminder to uphold your solemn oath to the people of this District and to your client, Justice itself, and ensure that every charge brought is the product of rigorous investigation and earned confidence in its merit mirroring the exemplary conduct that has long defined your Office.

The apparent rush in this case culminating today in the embarrassing retraction of charges suggests failure to adequately investigate to carefully gather facts and to thoughtfully consider the implications of your actions before wielding your immense power Your Office must operate with higher standard than that.

But just 18 days later, Pam Bondi’s DOJ charged another prominent Democrat — this time, SEIU CA President David Huerta — via complaint, without first doing basic investigation. The complaint, which was released before Huerta’s initial appearance yesterday, charges Huerta with one count of conspiring to impede an officer, a felony (h/t to Meghann Cuniff for releasing the complaint).

The incident occurred outside of this fast fashion factory, where officers were conducting a search.

As Bondi’s DOJ did with Ras Baraka (the charges that were dismissed) and LaMonica McIver (she has a hearing tomorrow), ICE team members physically grappled with their target, and then arrested them for the interaction. In this case, agents picked up Heurta and knocked him over, knocking his head into a curb and wrenching what he said was a bad shoulder in the process of cuffing him. He went to the hospital for treatment during his weekend detention.

There are two elements that have to be proven to convict Huerta of this felony: first, that the defendant used force, intimidation, or threats to induce a US official to stop doing his job. When this same charge was used against January 6 militias, prosecutors relied on actual assaults of cops, threats to spray them, military formation and kit, and threats to assassinate members of Congress. All of it threatened physical violence and even death.

The closest such threat to these guys was someone — no tie to Huerta is alleged — who told officers to shoot themselves.

As a crowd gathered outside of the vehicular gate, individuals in the crowd began screaming expletives at law
enforcement officers through the gate in an attempt to intimidate them. For example, one individual yelled “I want you to kill yourself! Go home and drink a lot of vodka and shoot yourself with your own god damn revolver!”

As to Huerta specifically, the affiant of this complaint claimed that Huerta’s banging on the gate to the facility was an “attempt to intimidate us,” and pointed to Huerta’s repeated taunts about his mask and claimed that this was necessarily an attempt to dox and intimidate the officers “in the future.”

I told HUERTA that if he continued to block the gate, he would be arrested. HUERTA replied “I can’t hear you through your fucking mask.” Others in the crowd repeatedly asked me and other law enforcement officers to take our masks off and attempted to film our faces and badges in an apparent attempt to intimidate us. Based on my training and experience, I know that protestors often do this so that they can publish identifying information about law enforcement officers online.1 That way, others can harass or threaten the law enforcement officers in the future.

The affiant’s name is redacted in several places in the affidavit, but not in the section where he introduces his background. He doxed himself, while citing the imagined threat of doxing as the intimidation necessary to sustain these charges.

But it’s the conspiracy part of this that is particularly nutty. Prosecutors need to show that Huerta entered into an agreement with at least one other person to intimidate an ICE team to stop them from doing their job.

As a threshold matter, the complaint presents no evidence that Huerta or anyone else knew what the law enforcement officers were doing — executing a judicial search warrant rather than conducting a raid based on an administrative warrant. That may matter to proving intent.

More importantly, the affiant just points to person after person and says, well maybe that indicates a conspiracy.

A woman provided details of the law enforcement presence into her phone. Maybe that was a conspiracy.

Protestors who arrived at the site — video-taped by an undercover officer!! — were communicating with each other. Maybe that was a conspiracy.

Huerta was “apparently typing text into his digital device while present at the protest.” Maybe that was a conspiracy.

Huerta lives nine miles away from the garment factory, so had to have learned of ICE activity from someone “coordinating a protest at this location.” Maybe that was a conspiracy.

Someone — no tie to Huerta is alleged, and there’s no indication he was arrested — attempted to padlock the gate. Maybe that was a conspiracy.

Huerta said, “What are you going to do, you can’t arrest us all,” which the affiant presents as proof that “he and the others had planned in advance of arrival to disrupt the operation.” Maybe that was a conspiracy.

Nowhere does the affiant even allege that Huerta and the others entered into a conspiracy to intimidate the beleaguered ICE officers standing behind a 7-foot steel fence, which protestors didn’t try to breach when it opened, remaining all the time on a public sidewalk. Rather, he alleges a conspiracy to disrupt what the protesters might have thought was an ICE raid, meaning any attempt to provide proof of a conspiracy to impede officers by intimidating or threatening them is almost nonexistent. And he repeatedly calls this a protest, even while describing Huerta using the language of protests and pickets.

One of the nuttiest parts of this is that the affiant — the guy who cited the threat of doxing as proof of intimidation and then doxed himself — is a senior HSI Agent pulled off his normal duty conducting cyber financial investigations, the kind of thing that normally targets international crypto-facilitated crimes.

I am a Supervisory Special Agent (“SSA”) with the Department of Homeland Security (“DHS”) United States Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations (“HSI”). I currently supervise the Cyber Financial investigations group at the HSI Los Angeles office.

The bread and butter of cyber investigations are digital tracks: cell phone, social media, and financial records.

The FBI collected reams and reams of such things before charging the aforementioned 18 USC 372 conspiracies against Jan6 militias. There were Signal and Telegram chats, Parler posts, saved communications from walkie-talkie chats during the riot, reported conversations from a number of cooperating witnesses, on top of the actual assaults of cops and weapons and direct threats.

And this guy, whose forté is to collect such things … hasn’t. He refers to Huerta’s digital device twice, but doesn’t say whether he tried to exploit it. He refers to social media posts (even while assuming the woman who first reported from the scene was using a videoconference app rather than just posting to TikTok or something), but he doesn’t cite a single post. He doesn’t even have phone records — available via subpoena even on a weekend — to identify with whom, if any, of the other protestors Huerta was really communicating.

Ryan Ribner, who wouldn’t have gotten where he was in his day job without highly developed skills at collecting and analyzing digital tracks, hasn’t (claimed to have) done any of that.

Another instance of charge first, investigate later.

There are several indications that may be the point.

First, there’s that undercover officer, who was filming the entire time but apparently didn’t produce a single video that could substantiate a conspiracy. This protest was miniscule. Why was there an undercover officer present at all? Did it have everything to do with Huerta’s presence (the undercover, as described, seemed focused on Huerta)?

Our trusty cyber expert also suggests that the van entering the gate of the facility — the predicate for making Huerta move and therefore the predicate to tackling him, injuring him, and then arresting him — may not, after all, be the only entrance. He describes that “as far as I was aware,” it was.

As far as I was aware, this gate was the only location through which vehicles could enter or exit the premises.

I wonder whether his awareness has changed over the weekend.

As this goes forward, it’s likely that our intrepid cyber investigator will actually subpoena some phone records, do the kind of thing he has been doing for over a decade. It’s likely he will then try to substantiate a conspiracy for which he has presented no more than speculation. Given his conflation of what he himself calls a protest and the intimidation and physical force contemplated in 18 USC 372, given the calls — including from Trump — to substantiate some organized background behind the larger protests in a city of 10 million, he may well imagine a conspiracy in SEIU’s organized protests.

Protests are what unions do, and SEIU is an enormously important union with close ties to the Democratic party. Will official and private communications among SEIU personnel planning protests look like plans for protests? Yes, of course. And DOJ will claim that banging on a gate is so intimidating to a bunch of armed law enforcement officers standing behind it that those plans for protests amount to a felony.

Pam Bondi’s DOJ first assaulted and injured, then charged, a very important labor leader with a conspiracy charge the evidence for which they didn’t even bother to look for.

Yet.

And that seems to be the point.