Canadian testimony details sting against Rafay and Burns

For the past four months, the state's case against Atif Rafay and Sebastian Burns has largely focused on the Bellevue police investigation into the 1994 triple murder of Rafay's parents and sister and the physical evidence left behind at the Rafays' Bellevue home.

Now, the aggravated-first-degree murder trial is moving into its second — and perhaps more crucial — phase with testimony from members of the Royal Canadian Mounted Police (RCMP), who used wiretaps and elaborate scenarios during an undercover operation that ultimately led to the arrests of Rafay and Burns in July 1995.

Flashy cars, plush hotels, cash and guns were among the props the RCMP used to convince Burns, Rafay and their friend Jimmy Miyoshi that they were dealing with violent mobsters, not undercover cops.

"There has to be believability," RCMP Inspector Loren Schwartz testified this past week. Burns, the first target of the undercover operation, needed to be convinced he was dealing with a criminal organization where violence was "a means to an end — and the means (were) irrelevant," Schwartz said.

Burns and Rafay, both 28, are accused of bludgeoning Rafay's family to death with a baseball bat in July 1994 for insurance money. The two, then 18-year-old Canadian citizens, left Bellevue for Vancouver, B.C. — where both grew up — within days of the homicides. Their departure virtually tied the hands of Bellevue detectives, who didn't have enough evidence to arrest the two and didn't have the authority to question Rafay and Burns once they'd crossed back into Canada.

To date, the most damaging testimony for the defense has come from the state's star witness, Miyoshi, the defendants' high-school friend who was initially arrested with Rafay and Burns in Canada on suspicion of conspiracy to commit murder. Miyoshi didn't come to Seattle to testify at trial but his pretrial, videotaped deposition was played for jurors earlier this month.

Though Miyoshi said he knew of the plot to kill the Rafays beforehand and talked with Atif Rafay and Burns after the murders, defense attorneys argued Miyoshi was pressured into falsely testifying against his friends in exchange for immunity from prosecution.

Miyoshi's credibility isn't the only potential problem for the state. After testimony from several experts, it seems the forensic evidence presented at trial doesn't directly link Rafay and Burns to the crimes. And while testimony from Bellevue police has provided reasons as to why detectives were suspicious of Rafay and Burns, that testimony hasn't proved to be overtly incriminating, either.

But now, the state is building its case towards a finale. Soon, jurors will hear from the two Canadian undercover police detectives who obtained videotaped confessions from Rafay and Burns. The jury got a sneak peek at the videotape during opening statements and has already heard defense attorneys argue that their clients were coerced into making false statements out of fear — and out of hopes of gaining the trust — of the undercover officer they thought was a powerful mob boss.

Critical for both the state and defense is the question of how the jury will view the Canadian evidence, particularly since much of it was obtained using police methods that are illegal in the U.S.

Defense attorneys sought to suppress the evidence during pretrial hearings, but King County Superior Court Judge Charles Mertel ruled last summer that it could be admitted because he found the RCMP had launched its investigation independent of American authorities.

In spring 1995, the RCMP received court authority to covertly follow Burns and Rafay; police were also authorized to break into the North Vancouver house where Rafay, Burns and Miyoshi lived in order to plant listening devices and to steal Rafay's car so listening devices could be installed in it, Schwartz testified. Police also bugged the phones of the defendants' family members and friends.

But on cross-examination, Schwartz — who was involved in monitoring conversations during the first part of the RCMP investigation — acknowledged that neither defendant made any incriminating statements while police were listening in.

That April, the RCMP upped the ante by launching an undercover operation. In one scenario, Burns was persuaded to drive a car he thought was stolen from Whistler to Vancouver, a two-hour trip; in other scenarios, Burns and Miyoshi engaged in phony money-laundering schemes, according to Schwartz and RCMP Staff Sgt. Jim Dallin.

In yet another scenario, an undercover officer posing as a street-level thug implied to Burns that the thug's two, 9 mm semi-automatic handguns had been used in a murder; during that same scenario, Burns helped another undercover officer count and bundle $250,000 — cash Burns thought was the fruit of criminal activity.

Dallin, who testified last Wednesday, said at one point in May 1995, police thought "the gig was up" after hearing Rafay and Burns discuss a newspaper article about a murder suspect who was caught by police officers posing as mobsters.

Even if Rafay and Burns were suspicious, it seems they never challenged the identities of the undercover officers. After a meeting with the bogus mob boss at a posh waterfront inn in Victoria on July 18, 1995, the RCMP had the evidence — the taped confessions — it needed. The next day, arrest warrants were prepared and on July 31, Rafay and Burns were taken into custody, Dallin said.

The trial will be adjourned tomorrow so attorneys can interview a potential witness who recently contacted prosecutors. The trial is set to resume Tuesday.

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com