Case3:14-cr-00102-CRB Document299 Filed05/15/15 Page1 of 6

1 MELINDA HAAG (CABN 132612)

United States Attorney
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DAVID R. CALLAWAY (CABN 121782)
3 Chief, Criminal Division
4 JOHN H. HEMANN (CABN 165823)
Assistant United States Attorney
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450 Golden Gate Avenue, Box 36055
San Francisco, California 94102-3495
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Telephone: (415) 436-7200
FAX: (415) 436-7478
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John.Hemann@usdoj.gov
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Attorneys for United States of America
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UNITED STATES OF AMERICA,
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Plaintiff,
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v.
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REYNALDO VARGAS,
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Defendant.
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CASE NO. CR 14-0102 CRB

GOVERNMENTS SENTENCING
MEMORANDUM AND MOTION FOR
DOWNWARD DEPARTURE OR VARIANCE FOR
SUBSTANTIAL ASSISTANCE
Date: May 20, 2015
Time: 2:00 pm

Pursuant to a written plea agreement, defendant Reynaldo Vargas pleaded guilty to four felony

20 charges contained in the captioned Indictment: conspiracy to distribute controlled substances, 21 U.S.C.
21 846 (Count One); distribution of marijuana, 21 U.S.C. 841 (Count Two); conspiracy to commit theft
22 concerning a federally funded program, 18 U.S.C. 371 (Count Four); and theft concerning a federally
23 funded program, 18 U.S.C. 666(a) (Count Five).
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In pleading guilty, Vargas agreed to cooperate with the United States by providing truthful

25 information about his own criminal activities and the criminal activities of other San Francisco police
26 officers. The government, in turn, agreed that if, in its sole and exclusive judgment, it decided that
27 Vargas had cooperated fully and truthfully, provided substantial assistance, and otherwise complied
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GOVTS SENTENCING MEM. (VARGAS)
CR 14-0102 CRB

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1 fully with the plea agreement, it would file a motion explaining the nature and extent of his cooperation
2 and recommending a downward departure under U.S.S.G. ' 5K1.1 and/or under 18 U.S.C. ' 3553(e).
The government has evaluated Vargas=s cooperation and assistance as well as his compliance

4 with the plea agreement and now moves for a downward departure pursuant to both provisions. The
5 government moves for this departure based on Vargas=s substantial cooperation by providing truthful,
6 complete, and reliable information in connection with the government=s investigation of other law
7 enforcement officers and others; the nature and extent of that assistance; the risk of harm incurred by
8 such assistance; and the timeliness of that assistance.
For the reasons discussed below, in addition to the factors set forth in 18 U.S.C. ' 3553, the

10 government submits that the defendant should be sentenced to an imprisonment term of 12 months to
11 run concurrently on counts one, two, four, and five. (The government will move to dismiss count three,
12 to which Vargas did not plead guilty.) Upon Vargass release, the government recommends a
13 supervised release term of three years. In addition, the government recommends a $20,000 fine and a
14 $400 special assessment per count.
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DISCUSSION

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A.

Offense Conduct
In 2009, Vargas, a plainclothes officer with the SFPD, reported to Sergeant Ian Furminger and

19 worked with Officer Edmond Robles. Over the course of a year, the three officers, while performing
20 their official duties, seized money, drugs, and other valuable items belonging to others, and instead of
21 booking these items as evidence in criminal prosecutions, took these items for their own. The items
22 taken, including money, were in total worth tens of thousands of dollars.
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The narrative at trial was supplied by two witnesses, Vargas and Cesar Hernandez, whose

24 testimony was corroborated by other evidence. The evidence demonstrated that the three officers
25 engaged in the following criminal activity:
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Around February 2009, Robles, using threats, persuaded a drug dealer,

Hernandez, to become his confidential informant. Based on Hernanezs
information, Robles arrested another drug dealer and stole cash from his house.
Vargas knew about Robless threatening conduct toward Hernandez and, after the
thefts, went back to the same house with Robles and looked for jewelry.

GOVTS SENTENCING MEM. (VARGAS)

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In February 2009, Robles and Vargas arrested a drug dealer they believed to be
wealthy. Partly in an effort to steal Furlongs money and vehicles, Robles,
Furminger, and Vargas located and searched Furlongs hotel room on March 4,
2009. They did not find money, but Vargas found two Apple gift cards that
Furlong had received as payment for heroin, which Vargas pocketed after calling
Apple and verifying the balances to be $500 and $53.17, respectively. Vargas
later told Robles he had taken the gift cards, and the two of them went to an Apple
Store in downtown San Francisco. Vargas testified that they used the cards to
purchase him an iPhone costing $299, which he immediately registered as his, and
an iPod Nano costing $199 for Robles.

Robles, Furminger, and Vargas also attempted to rob a drug dealer of money
buried in Golden Gate Park, and to rob an auto body shop known to conceal
money and cocaine in the panels of its cars.

In March 2009, Robles, Furminger, and Vargas intercepted a UPS package

containing marijuana, which Robles and Vargas then gave to confidential
informants so that the informants could sell the marijuana for personal profit.

In May 2009, Vargas found $30,000 during the search of a drug stash house and
split the money with Robles and Furminger.

In June 2009, Robles found and took $1,900 from the master bedroom of an
elderly woman, while conducting, with Vargas, a search for her sons illegal
firearms. Robles split the money with Vargas.

In September 2009, while assisting in the arrest and seizure of evidence from a
drug dealers residence, Robles stole a license plate cover off the drug dealers
vehicle, while Vargas stole stereo equipment.

In October 2009, Robles, Furminger, and Vargas searched a drug dealers

residence and took $8,759 from him, which they failed to list as evidence in the
police report and then split three ways.

In November 2009, Furminger, Vargas, and Robles took money from a heroin
dealer during a search of a self-storage unit and split it amongst themselves.

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B.

Guidelines Calculation
The parties did not agree, in the plea agreement, on a Guideline calculation. The government

22 agrees with the Probation Offices Guideline calculation and that the total offense level is 15. The
23 government also agrees that defendants criminal history category is Category I.
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The government notes that Vargass Sentencing Guidelines are lower than Furmingers and

25 Robless for two reasons: First, USSG 2H1.1 did not apply to Vargas because he did not plead guilty
26 to the civil rights conspiracy count, and 2H1.1 drove the higher offense level for Furminger and
27 Robles. The information used to convict Furminger and Robles of the civil rights conspiracy was
28 provided by Vargas as part of his cooperation and could not, under the plea agreement, be used against
GOVTS SENTENCING MEM. (VARGAS)
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1 him. Second, Vargass offense level was reduced by three levels for his pretrial acceptance of
2 responsibility.
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C.

Departure for Substantial Assistance

Section 5K1.1 of the United States Sentencing Guidelines provides that upon motion of the

5 government stating that the defendant has provided substantial assistance in the investigation or
6 prosecution of another person who has committed an offense, the Court may depart from the guidelines.
7 Section 5K1.1 enumerates five non-exclusive factors that the Court may consider. The government has
8 fairly evaluated Vargass assistance and submits that application of the relevant factors warrants the
9 downward departure recommended by the government.
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1.

The Significance and Usefulness of the Assistance

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Under the first ' 5K1.1 factor, the Court evaluates the significance and usefulness of the

12 defendant=s assistance, taking into consideration the government=s evaluation of the assistance rendered.
13 Vargas provided significant and useful assistance in telling the government about unlawful conduct of
14 other law enforcement officers, including information previously unknown to the government. Vargass
15 information significantly broadened the charges against Robles and Furminger. Specifically, he
16 informed the government of thefts of thousands of dollars by the three co-conspirators that the
17 government was able to corroborate and prove at trial. Vargas also corroborated the testimony of Cesar
18 Hernandez as to how the conspiracy began.
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In addition, Vargas provided information that allowed the government to correct an erroneous

20 interpretation of the evidence concerning Furmingers participation in the drug conspiracy. Specifically,
21 Vargas explained that Furminger was not behind the seizure and distribution of marijuana, as another
22 witness had claimed, and that Furmingers role in the conspiracy occurred only later, after the marijuana
23 had been distributed by Vargas and Furminger.
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2.

The Truthfulness, Completeness, and Reliability of Information or Testimony

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The second factor is the truthfulness, completeness, and reliability of the information or

26 testimony provided by the defendant. Vargas testified for two days and was subjected to vigorous cross27 examination. His testimony was lucid, consistent and credible. His testimony was corroborated in
28 significant respects by other evidence the government was able to locate and introduce at trial.
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The jury clearly believed Vargass testimony. Robles and Furminger were convicted on the

2 charges that related most directly to the information provided by Vargas and acquitted on about which
3 Vargas did not provide testimony. Specifically, they were convicted on the charges that related to the
4 thefts about which Vargas testified, and acquitted on the charges that related to the alleged Sergio
5 Sanchez extortion scheme.
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3.

The Nature and Extent of the Assistance

The third factor examines the nature and extent of the defendant=s assistance. Vargas has

8 substantially assisted the United States= investigation and prosecution of Robles and Furminger. He
9 participated in seven pretrial interviews and testified for two days at trial. He was available to the
10 prosecution and FBI on numerous occasions to answer questions and provide follow-up information.
Vargass testimony was a centerpiece of the governments presentation at trial. He provided an

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12 insider narrative that brought the rest of the evidence together to tell a clear, cogent, and logical story.
13 Vargass testimony led directly to the revelation of the extent and seriousness of the illegal conduct by
14 three San Francisco plainclothes police officers, and the conviction at trial of two of them.
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4.

Any Injury Suffered or Danger of Risk of Injury

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The fourth factor is whether the defendant or his family suffered any injury or danger or risk of

17 injury resulting from his assistance. In addition to the usual risks associated with being a Asnitch@ in
18 prison, Vargas faces the risk of retaliation at the hands of law enforcement by virtue of his cooperation
19 against police officers.
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5.

The Timeliness of the Assistance

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The factor evaluates the timeliness of defendant=s assistance.

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Vargas pleaded guilty in October 2014, after being indicted in February 2014. His cooperation

23 was timely; it occurred sufficiently before trial to permit the government to supersede the indictment,
24 conduct additional investigation, and begin the trial after only a short delay. Vargas made himself
25 available to the prosecutors and FBI agents as needed between the time of his plea and his testimony at
26 trial.
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GOVTS SENTENCING MEM. (VARGAS)
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1 D.

Section 3553(a) Factors

The proposed sentence is also appropriate under the 18 U.S.C. ' 3553(a) factors for the same

3 reasons set forth above. It reflects the serious nature and circumstances of Vargass crimes, his history
4 and personal characteristics, including his timely acceptance of responsibility for his own wrongdoing,
5 and his conduct after he was charged in this case. Given Vargass particular circumstances, a sentence
6 of 12 months imprisonment promotes his respect for the law, provides just punishment, and affords
7 adequate deterrence, both general and specific.
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One unique aspect of this case is it is unusual for police officers to agree to cooperate in a

9 prosecution against their fellow officers. It is important that the ultimate sentence imposed on Vargas
10 provide incentive to officers in future cases to cooperate with investigations into police misconduct.
11 Vargass cooperation and testimony was crucial in bringing to full light and public scrutiny the conduct
12 in which he and his fellow officer engaged. Future efforts to uncover public corruption will be aided by
13 a sentence that reflects the benefit of such cooperation.
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CONCLUSION

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For the foregoing reasons, the United States asks the Court to sentence the defendant, Reynaldo

17 Vargas, to a term of imprisonment or 12 months; a $20,000 fine; and $400 in special assessments.
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19 DATED: May 15, 2015

Respectfully submitted,

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MELINDA HAAG
United States Attorney

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John H. Hemann
_____________________________
JOHN H. HEMANN
Assistant United States Attorney

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GOVTS SENTENCING MEM. (VARGAS)
CR 14-0102 CRB