Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA. He is a frequent author
and lecturer on criminal law. He was formerly a prosecutor in the United States Attorney's Office and is a member of
The Champion Advisory Board.
The author wishes to thank Kevin Jon Heller and Blair Berk, members of his firm, for their invaluable assistance
in the preparation of this column.
Imagine a mammoth United States government prosecution. Sinister allegations of RICO, RICO conspiracy and, Hobbs Act conspiracies. Federal prosecutors flying all over the world, and returning with dozens of witnesses from Europe and South America to testify about the crimes. Four exhaustive months of trial. Over a hundred witnesses called by the prosecution. Millions of dollars spent on handsome, sophisticated exhibits, charts, and multi-media demonstrative aids for the jury, and more than 150 pages of jury instructions submitted by the prosecution and defense. On top of this, pronouncements by Tom Scott, the U.S. Attorney for the Southern District of Florida, stating unequivocally that this was the single most important case in the office. All of this, followed by over two months of jury deliberations.
One might think we were talking about a major war crimes prosecution; at the very least, a trial relating to an insidious act of domestic terrorism. Instead, we are referring to the misguided trial of 12 poor, African-American muggers from Miami who, in the end, shared only their respective criminal job descriptions and the fact that they were targets in one of the most costly and misguided -- and ultimately unsuccessful -- RICO prosecutions in recent years.
Widely promoted as a federal effort to prove that tourist muggers in Miami were actively running an organized crime syndicate, all 12 defendants were indicted last fall and charged with RICO, RICO conspiracy, Hobbs conspiracy, and substantive Hobbs' counts, among other charges. See, United States v. Harrell, et al., Case No. 96-22-CR-Nesbitt (S.D. Fla. 1998). The prosecution claimed that this motley crew carefully targeted foreign tourists -- but not for the obvious reasons that they were likely to have more cash, be unfamiliar with the local area, and generally more vulnerable to robbery. Instead, the prosecution theorized to the jury that the defendants were so cunning, that they had specifically calculated that these particular visitors would have difficulty "communicating with law enforcement" and would actually be less likely to "return for state court criminal proceedings." The government spent an enormous sum of money sending prosecutors and agents abroad for months at a time and bringing many of the victims from Europe and South America to the United States at taxpayer expense to testify.
The majority of the defendants were already serving significant state court sentences for prior robberies and criminal offenses. Many trial observers concluded that this was the local U.S. Attorney's Office opportunity to walk away with splashy but relatively meaningless convictions, intended to send a message on behalf of the local Chamber of Commerce that Miami had cleaned up its act after a spate of highly publicized tourist robberies, and had this "organized criminal menace" under control. Yet it quickly became apparent in the trial, which began in October, that the dozen defendants were far from organized, and in fact the majority of the defendants did not even know each other prior to the indictments. All of the defendants were African American, and the majority of the victims were Hispanic; this fact, coupled with the clear overcharging in the case, quickly led to the trial taking on incendiary racial overtones. Although originally estimated by the prosecution to last no more than two months, it took over four months to conclude the prosecution's case in the ornate historic central courtroom at the old Post Office building in downtown Miami. Jury deliberations were also grueling, lasting more than two months; by the end, of the 15 jurors originally selected, only 11 remained.
Prior to the verdict, a weary U.S. District Court judge, Lenore Nesbitt, admonished against any demonstrations as the jury filed into the courtroom to deliver its decision. The jury had heard gut-wrenching testimony from the victims, among them three Venezuelan nuns who were attacked and robbed on Interstate 95 and deprived of money which was going to buy toys for orphans. The prosecution also used the testimony of convicted drug criminals to place the defendants in concert with one another for purposes of the RICO and Hobbs conspiracy allegations.
The verdicts were astounding. Of the 12 defendants, six were acquitted outright of RICO, and the jury hung on the other six defendants as to the RICO substansive charges. The jury also hung on the RICO conspiracy and the Hobbs conspiracy for all defendants. Not one defendant was convicted of any substantive Hobbs Act count. The government was left with a single guilty verdict for one defendant -- a felon caught in possession of a gun.
How could such a monumental waste of government resources and abusive federalizing of state criminal charges take place? According to talented co-lead defense lawyer Bill Matthewman of Miami, who represented Sherman Douglas, one of the lead defendants, "this is a major rebuke of the government's overblown use of the racketeering laws. These mega-trials turn out to be mega-mistakes for the government." The current Miami U.S. Attorney Tom Scott, a decent man and a fine lawyer, had inherited the prosecution. Nevertheless, he continued to make it a priority of the office, and was devastated by the defeat -- although he publicly stated that he was going to continue to work with state authorities to federalize these kinds of crimes. Along with co-lead counsel Leonard Fenn of Miami's DeFabio & Fenn, the skilled defense lawyers in the case had challenged the overcharging of RICO and Hobbs conspiracy counts at every turn.
According to Matthewman, the prosecution presented the RICO theory as if three defined phases of the criminal enterprise were planned and organized: first, that "some" of the defendants were going to the airport to look for victims; second, that the defendants would follow rental cars coming from the airport to target their victims; and third, to get them to stop, "some" of the defendants would flag the victims down or try to alert them that there was a problem with their vehicles. Yet the defense, throughout the trial, made clear to the jurors that the case was not about a racketeering enterprise, but simply what it looked like -- a string of unrelated muggings and robberies dating back to 1983 -- crimes for which many of the defendants had already been convicted and were serving lengthy sentences in state prison. Also disturbing was that prosecutors had simply recharged -- as Hobbs counts, and then as predicates for the RICO counts -- many of the same state charges for which the defendants had already been convicted.
During closing arguments, the prosecution pulled out all the stops, which in the end may have ultimately turned to the defense's advantage. Matthewman recounts that the Assistant U.S. Attorney trying the case, Beth Sreenan, spent over $10,000 alone on a sophisticated "multi-media" closing argument, utilizing eight different television monitors, along with sophisticated charts and videos. The prosecution dropped a few thousand dollars on one video just so the case-agent could drive to and from the airport and videotape the trip to show to the jury. In another cunning display of their exploitation of the information superhighway, the prosecutor arranged it so that every time she mentioned a defendant's name, the defendant's face would be displayed on all eight televisions simultaneously, followed by that particular defendant's rap sheet, blown up and highlighted for the jurors. Apparently referring eloquently to the beautiful mural overlooking all the participants in the trial in the grand central courtroom of the Miami courthouse, which depicts nature and life, the prosecutor argued to the jurors that the cunning criminal defendants "moved like a flock of birds."
Turning the prosecution's closing argument on its head, Matthewman pointed to a little, lonely bird in the corner of the vast courtroom mural to describe his own client in the case, telling the jurors that when you hear "flock" from the prosecution, "just remember it's a crock." He whipped out a crumpled piece of paper from his pocket and unfolded it, explaining to the jurors that this was his fancy chart that he had prepared with the help of his children, so that he could have something to show the jurors in response to the government's "beautiful charts." As he teasingly unfolded the paper, Matthewman explained that he felt that his chart underscored exactly what the prosecution's evidence was in the case -- finally opening the paper so the jurors could see it, Matthewman revealed a crumpled blank sheet of paper. Even the judge cracked a smile as the jurors giggled.
Defense lawyers, throughout the prosecution's case, complained about the racial motivations of the prosecution, as well as the tactics employed with witnesses. Louis Cacuso, the attorney for a reputed ringleader, David "Robin Hood" Harrell, described how the government had repeatedly threatened his client's girlfriend with the loss of her child if she did not "cooperate."
This sensational trial was not without many disruptive flare-ups. Apparently the defendants did not get along well with the deputy marshals guarding them inside and outside the courtroom. At one point, one defendant spit in the face of a marshal, and several other defendants were subdued during a disruption in an elevator. Midway through the trial, prosecutors claim that the defendants were attempting to loosen the arm of a 10-foot long wooden bench in the courtroom, which prosecutors had hypothesized "could" have been turned into some kind of makeshift weapon, presumably of the "battering-ram" variety. Not your typical federal defendants.
At one point during this circus, Judge Nesbitt ordered the defendants to sit, and when they did not do so, marshals swooped in with pepper spray and proceeded to squirt. Apparently, one marshal got hit in the face, and another was incapacitated by the spray itself. Another marshal claimed to have been attacked while leading the defendants from the holding cell at the Federal Detention Center to the courtroom across the street. Interestingly, following the embarrassment of the acquittals and the hung jury, prosecutors immediately returned an indictment against some of the defendants for assaulting the federal marshals.
Although jubilant over the verdicts, defense lawyers expressed their deep concern over the trend possibly established by such a large-scale federal prosecution of street crime. "Hopefully this will send a message to leave state crime in state court," said co-lead counsel Leonard Fenn, who represented defendant Johnny Wade. Miami Federal Defender Kathleen Williams, who did not participate in the case, warned that federal prosecutions should not be used to make up for what are perceived as inadequate sentences in state courts: "The federal courts are not a sentencing enhancement system."
Although the U.S. Attorney's Office in Miami has announced that it will retry the defendants, it remains unclear on which counts the defendants will be retried. Most sources believe that the federal prosecutors will abandon a second trial on any of the RICO counts, and it appears that each of the defendants may likely receive a very favorable plea offer. Such offers would avoid the embarrassment to the government of a second trial, in a city where there are presently a couple of on-going retrials which have already provided enough embarrassment to the government for a lifetime. As Matthewman put it best, "had only the federal government taken the million dollars it spent on this ill-fated RICO prosecution and placed those monies in the poor Overtown and Liberty City areas where the majority of the defendants were from," the federal government may have avoided any tourists being robbed in the first instance.
Those responsible for this fiasco lacked what is essential to every good prosecutor's office -- the ability to objectively evaluate a criminal case. Fortunately for the citizens accused, many jurors in this country do not "leave their common sense outside" when they enter the jury room to deliberate. In this era of diminishing constitutional rights and continually increasing penalties, a fair-minded jury often remains the accused's last best hope.
Seventh Circuit Reverses RICO Dismissal In the January/February RICO Report, this author described the impressive victory of Robert Tarun, a partner with Chicago's Winston & Strawn, in convincing a federal district judge in Chicago, to dismiss 31 counts of a RICO indictment on the ground that those counts were pre-empted by the National Labor Relations Act ("NLRA") and the Labor and Management Relations Act ("LMRA"). United States v. Palumbo Bros., Inc., 1997 U.S. Dist. LEXIS 15976 (N.D. Ill. Oct. 9, 1997) ("Palumbo I").
Tarun's victory, unfortunately, has proven short-lived. In a less-than-compelling opinion with enormous implications, the Seventh Circuit recently reversed Judge Bucklo's decision. United States v. Palumbo Bros., Inc., __ F.3d, 1998 WL 224892 (7th Cir. 1998) ("Palumbo II").
As noted in the earlier column, Palumbo Brothers centers upon wages and benefits paid by the two corporate defendants in the case, PBI and Monarch, to their unionized employees and to their employees' unions, the Teamsters Union and the Laborers Union. The indictment alleges that the defendants engaged in a pattern of racketeering activity spanning from approximately 1973 to 1996.
Count 1 of the indictment, the RICO count, alleges that the defendants executed a scheme to defraud their employees and labor unions by systematically under-reporting the number of hours worked, thereby reducing the defendants' contributions to the pension and health and welfare funds, in violation of the collective bargaining agreements ("CBA") between the defendants and the unions. As predicate acts for that scheme to defraud, the indictment alleges that, to conceal their scheme, the defendants sent numerous false statements and compliance documents through the mail to the unions and to the Illinois Department of Transportation.
Counts 8-30 allege acts of mail fraud connected with the scheme to defraud. These acts are charged as separate violations of the mail-fraud statute, in addition to their use in Count 1 as predicate acts for the RICO violation. Similarly, Counts 35-42 are based on the alleged submission of false statements by the defendants in connection with required ERISA filings.
In his motion to dismiss, Tarun argued that all of the counts discussed above were preempted by the NLRA, 29 U.S.C. 151, et seq., and/or Section 301 of the LMRA, 29 U.S.C. 185, because the acts underlying those counts were wrongful only by virtue of the collective-bargaining agreements ("CBAs") between the defendants and the unions. Judge Bucklo agreed, granted Tarun's motion, and dismissed Racketeering Acts 1 and 2 in Count 1, Counts 8-30, and Counts 35-42. The government then appealed.
The Seventh Circuit began its opinion by accepting Judge Bucklo's conclusion "that the alleged criminal conduct described in the indictment also illustrates the defendants' breaches of the collective bargaining agreements." Palumbo II, __ F.3d at __. The opinion disagreed, however, with Judge Bucklo's resolution of what it described as the "central issue" in the case: namely, "whether an indictment that charges criminal offenses and simultaneously implicates unfair labor practices in these criminal allegations can survive labor preemption." Id. at __.
To begin with, the Seventh Circuit rejected the idea that Garmon preemption forecloses the government from prosecuting PBI and Monarch for their violations of the CBAs. See San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236 (1959). Under Garmon, the NLRB preempts both federal and state claims based on conduct that is "arguably prohibited" under the NLRA, id. at 242-45, in order to protect the primary jurisdiction of the NLRB. See Talbot v. Robert Mathews Distrib. Co., 961 F.2d 654, 659 (7th Cir. 1992). According to the Seventh Circuit, however, Garmon preemption does not apply to the criminal charges in Palumbo Brothers, for the simple -- and remarkably unpersuasive -- reason that "preemption of portions of the indictment would leave the United States without recourse to punish criminal conduct which Congress specifically sought to prevent." Palumbo II, __ F.3d at __. Indeed, the court held that, unless Congress has expressly indicated to the contrary, Garmon preemption simply does not apply in the criminal context at all:
[i]n the absence of any express congressional intent that unfair labor practices, which also independently qualify as violations of criminal statutes, are insulated from criminal liability . . . the jurisdiction of a federal court to adjudicate a criminal prosecution does not infringe upon or interfere with the primary jurisdiction of the NLRB.
Id. at __.
The Seventh Circuit also rejected the idea that Section 301 of the LMRA pre-empts the government's prosecution of PBI and Monarch. At first glance, that idea appears sound: rooted in the need to maintain "uniformity and predictability" of federal labor law, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985), Section 301 "displaces any independent federal or state cause of action when the claim concerns a legitimate labor dispute and involves the breach of a collective bargaining agreement." Palumbo II, __ F.3d at __ (citing Allis-Chalmers Corp., 471 U.S. at 211). Nevertheless, the court held, Section 301 cannot be interpreted to pre-empt a criminal prosecution that involves -- like the government's prosecution of PBI and Monarch -- violations of RICO, the mail fraud statute, or ERISA, regardless of whether the acts giving rise to that prosecution involved such a breach.
First, "neither the NLRA nor the LMRA provides criminal penalties for breaches of collective bargaining agreements." Id. at __. As a result, "labor law does not provide the exclusive remedy for such a breach that advances a fraudulent scheme to deprive employees and unions of economic benefits to which they are entitled." Id. at __.
Second, "[n]othing in the legislative history of labor legislation suggests that penalties imposed for criminal violations should not be available to punish an employer who uses the mail to execute a fraudulent scheme and manipulates the bargaining process to insulate itself from criminal liability." Id. at __.
Third, and finally, "there is minimal risk, if any, that prosecuting the defendants for alleged criminal conduct would impermissibly interfere with the NLRB's jurisdiction; a criminal prosecution fundamentally does not involve the regulation of labor activities." Id. at __.
The Seventh Circuit's decision in Palumbo II is exceptionally broad. Although the opinion itself focused on the specific charges against PBI and Monarch, the language of the opinion indicates that the Seventh Circuit's basic position is that the NLRA and the LMRA never pre-empt a criminal prosecution. Indeed, the court explicitly said as much in the section of its opinion, euphemistically entitled "Reconciliation of Federal Labor Law & Policy with Criminal Jurisprudence":
The existence of labor grievance procedures to resolve unfair labor practices and the primary jurisdiction of the NLRB to impose remedial sanctions do not relieve an employer of accountability or insulate it from liability for participating in criminal violations of the law, even though resolution of the labor dispute and adjudication of the criminal prosecution may involve the same set of facts.
Id. at __.
The implications of Palumbo II are indeed troubling. Because of that decision, employers are not only civilly liable under the NLRA and LMRA for violations of their collective-bargaining agreement with their employees, they are criminally liable as well. The government's prosecution of PBI and Monarch, therefore, is likely just the tip of the iceberg.
Palumbo II is thus yet another example of the dangers inherent in expansive RICO interpretations: "garden-variety" civil disputes are turned into RICO predicate offenses; the predicates are then combined with "imaginative" uses of the mail fraud statute to prosecute businessmen as racketeers. This certainly was not why RICO was enacted, as an essential weapon in the battle against organized crime.
Eighth Circuit Rejects Latest DOJ Attempt To Exempt Federal Prosecutors from State Ethical Rules As repeatedly chronicled in these pages, the Justice Department has fought a long and continually unsuccessful war to exempt federal prosecutors from state ethical rules. See, e.g., RICO Report, The Champion (Dec. 1995; Mar. 1995; Dec. 1994; May 1994; Aug. 1993; June 1993; April 1993). The DOJ recently lost yet another battle in that war. In an important victory for those who believe federal prosecutors should be ethically accountable for their actions, the Eighth Circuit held that Attorney General Janet Reno exceeded her statutory authority when she promulgated a federal regulation, 28 C.F.R. 77.10(a), that purports to give the infamous Thornburgh Memorandum (with minor modifications) the force of law. U.S. ex rel. O'Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998).
The case began as a qui tam action brought by Daniel O'Keefe under the False Claims Act, 18 U.S.C. 3729-33, alleging that McDonnell Douglas systematically mischarged the number of hours its employees worked on United States military contracts. The government subsequently intervened in the suit, and the DOJ began pretrial investigation.
During the course of the DOJ's investigation, DOJ investigators made numerous ex parte contacts with present and former low-level employees of McDonnell Douglas without the consent of the corporation's counsel. McDonnell Douglas then brought a motion in federal court for a protective order preventing the contacts. The motion argued that the DOJ's ex parte contacts are barred by Missouri Supreme Court Rule 4-4.2, which has been adopted, along with all of Missouri's ethical rules, by the United States District Court for the Eastern District of Missouri.
Rule 4-4.2 provides:
in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
Additionally, the official comment to Rule 4-4.2, adopted by the Missouri Supreme Court in State ex rel. Pitts v. Roberts, 875 S.W.2d 200, 202 (Mo. 1993) (en banc), bars ex parte communications with persons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
Not surprisingly, the government opposed McDonnell Douglas' motion. In its view, a protective order was not warranted because the ex parte contacts of the DOJ investigators are expressly authorized by the recently enacted 28 C.F.R. 77.10(a), which provides:
A communication with a current employee of an organization that qualifies as a represented part or represented person shall be considered to be a communication with the organization for purposes of this part only if the employee is a controlling individual. A "controlling individual" is a current high level employee who is known by the government to be participating as a decision maker in the determination of the organization's legal position in the proceeding or investigation of the subject matter.
According to the government, Section 77.10(a) supersedes the local rules of the Eastern District of Missouri, and thus authorizes the DOJ's ex parte contacts. Alternatively, the government argued that, in light of Section 77.10(a), the ex parte contacts were "authorized by law" and thus fell within the express exception to Rule 4-4.2.
McDonnell Douglas responded to the DOJ's argument -- charitably described as legal sophistry -- by contending that the Attorney General exceeded her statutory authority when she promulgated Section 77.10(a).
The district court agreed with McDonnell Douglas and granted its request for a protective order. The order commanded the DOJ to cease engaging in ex parte contacts and to provide discovery of information obtained from the contacts already made. The government appealed.
The Eighth Circuit affirmed the district court decision. Noting that "it is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress," Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), the court concluded that nothing in any of the sections of the United States Code cited by the government "expressly or impliedly gives the Attorney General the authority to exempt lawyers representing the United States from the local rules of ethics which bind all other lawyers appearing in that court of the United States." Id. at 1257. The court thus struck down the regulation as beyond the Attorney General's statutory authority. O'Keefe, 132 F.3d at 1257 (citing 5 U.S.C. 706(2)(C) (1994) ("The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."), Chrysler Corp. v. Brown, 441 U.S. 281, 308 (1979) (holding that a regulation must be struck down unless "the grant of authority contemplates the regulation issued")).
The DOJ first argued that the regulation was authorized by 5 U.S.C. 301, better known as the "Housekeeping Statute," which authorizes the head of a governmental department to "prescribe regulations for the government of his department." The Eighth Circuit rejected that argument, noting that the Supreme Court held in Chrysler Corp. that the statute "is indeed a 'housekeeping statute,' authorizing what the APA terms 'rules of agency organization, procedure, or practice' as opposed to substantive rules," O'Keefe, 132 F.3d at 1255 (citing Chrysler Corp., 441 U.S. at 309-10), and that numerous federal courts had rejected attempts by government agencies to find statutory authority for substantive regulations in the statute. See, e.g., Exxon Shipping Co. v. United States Dep't of Interior, 34 F.3d 774, 776-78 (9th Cir. 1994) (invalidating regulations allowing agency to withhold deposition testimony of federal employees); In re Cincinnati Radiation Litig., 874 F. Supp. 796, 826-27 (S.D. Ohio 1995) (invalidating Defense Department directive authorizing use of human volunteers in experimental research).
The DOJ also argued that various Sections of Title 28 having to do with the authority and powers of the Attorney General and the DOJ -- Sections 509, 510, 515(a), 516, 519, 533, and 547 -- collectively authorized Section 77.10(a). The Eighth Circuit rejected that argument as well, pointing out that the Ninth Circuit had previously concluded that none of the sections authorizes substantive rulemaking, see United States v. Lopez, 4 F.3d 1455, 1461 (9th Cir. 1993) (rejecting claim that 509, 515, 516, 533, and 547 authorized similar DOJ policy), and concluding that no reviewing court could reasonably believe that the Sections authorized the regulation. O'Keefe, 132 F.3d at 1256.
Finally, the DOJ argued that Section 77.10(a), as a federal regulation, preempted the local rules of the Eastern District of Missouri. Quite rightly, the Eighth Circuit dismissed that argument in a footnote as a "non-issue," noting that "[a] federal regulation cannot preempt federal law, because 'Supremacy Clause considerations do not come into play when a court balances competing federal rules.'" Id. at 1257 (quoting City of Kirkwood v. Union Elec. Co., 671 F.2d 1173, 1178-79 n.14 (8th Cir. 1982)); see also United States v. Klubock, 832 F.2d 649, 651 (1st Cir.) (finding pre-emption doctrine inapplicable to federal court rule that incorporates state ethics rules), aff'd en banc, 832 F.2d 664, 667 (1st Cir. 1987).
One can only wonder when the Justice Department will tire of trying to convince federal courts to accept its arrogant and patently unethical position that federal prosecutors are not subject to state ethical rules. Those rules are essential to protecting the rights of both the guilty and the innocent; without such rules, overzealous federal prosecutors have free reign to harass and intimidate witnesses at will, as well as to try to extract incriminating information from individuals, however unreliable that information may be.
Kenneth Starr's cavalier treatment of Monica Lewinsky's rights is a case in point. News reports have suggested that the Office of the Independent Counsel may have flagrantly violated ABA Model Rule of Professional Conduct 4.2, which, like Missouri's Rule 4-4.2, prohibits a lawyer from "communicat[ing] about the subject of the representation with a party the lawyer knows to be represented by another lawyer . . . unless the lawyer has the consent of the other lawyer or is authorized by law to do so." According to those reports, Kenneth Starr sent Linda Tripp to secretly tape Lewinsky despite knowing that she had a lawyer. He may be able to defend that conduct as investigation of an ongoing crime or new offense. However, his minions even went so far as to tell Lewinsky, once they had her sequestered in the now-notorious hotel room, "You cannot call your lawyer. If you call your lawyer, we cannot grant you immunity." William Ginsburg & Nathaniel Speights, Behind the Scenes with Monica, Time, Feb. 16, 1998. Clearly, the approximately eight-hour interrogation of Ms. Lewinsky by a half-dozen agents and prosecutors who knew she was represented by counsel is, to put it mildly, reprehensible.
It is, of course, precisely Rule 4.2 that Janet Reno intended Section 77.10(a) to supplant. Starr's alleged treatment of Lewinsky thus demonstrates with remarkable clarity the wisdom of the Eight Circuit's decision in O'Keefe.
S.D.N.Y. Suppresses Incriminating Statements Obtained in the Absence of Counsel The Sixth Amendment provides that a criminal defendant has a right to counsel "at or after the initiation of adversary judicial proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 688-89 (1972). That right, however, is offense specific: while a defendant cannot be interrogated in the absence of counsel with respect to the charged offense, no counsel is necessary when he is questioned about conduct unrelated to that charge. See generally McNeil v. Wisconsin, 501 U.S. 171 (1991); Moran v. Burbine, 475 U.S. 412 (1986).
Despite the offense-specific nature of the Sixth Amendment right to counsel, a number of circuits have held that, once attached, the right to counsel for a charged offense carries over to "closely related" but uncharged offenses. See, e.g., United States v. Arnold, 106 F.3d 37 (3d Cir. 1997); United States v. Kidd, 12 F.3d 30 (4th Cir. 1993); United States v. Hines, 963 F.2d 255 (9th Cir. 1992); United States v. Cooper, 949 F.2d 737 (5th Cir. 1991); United States v. Mitcheltree, 940 F.2d 1329(10th Cir. 1991); see generally RICO Report, The Champion (Aug. 1997) (discussing positions courts have taken concerning "closely related" rule). In other words, as the Tenth Circuit said in Mitcheltree -- in which a not-in-custody defendant was questioned by a prosecution informer -- "[t]he government may violate a defendant's Sixth Amendment right to counsel when it deliberately elicits uncounseled statements about very closely related crimes which arise out of the same course of conduct as the charged offenses." 940 F.2d at 1342.
Although the Second Circuit has yet to explicitly embrace the "closely related" doctrine, Judge Shira A. Scheindlin of the Southern District of New York recently made use of the doctrine in an unusual multi-defendant, multi-count RICO and drug-conspiracy case. United States v. Santiago, __ F. Supp. 1998 WL 61849 (S.D.N.Y. 1998) aff'd, 1998 U.S. App. LEXIS (2d Cir. June 10, 1998).
Angel Santiago was arrested on or about August 29, 1996, on charges that he sold two vials of crack to an undercover police officer. After being arrested again a couple of months later for selling five vials of crack to a police officer, he was charged with violating New York's drug laws and placed in custody on Rikers Island to await disposition of those charges. While in custody, Santiago obtained counsel.
On August 7, 1997, Santiago was indicted federally on the RICO and drug-conspiracy charges. While the federal charges were under investigation, agents of a joint task force -- consisting of DEA agents and officers of the New York City Police Department -- interviewed Santiago pursuant to a writ of habeas corpus ad testificandum. When asked how that interview came about, one agent stated:
Well, through my investigation into the Power Rule gang, I knew that Angel Santiago was a member. So at that point I took a shot at interviewing him . . . I just, on a hunch, pulled him out of Rikers Island. He's a member of the gang, he was looking at two state cases at the time, so I figured he would be a candidate for an interview.
Id. at __.
In order to obtain the writ of habeas corpus ad testificandum, an AUSA submitted an affidavit stating that "she has charge of an investigation being conducted by the United States Attorney for the Southern District of New York in the above-entitled matter." The affidavit also stated that the AUSA believed Santiago had certain information and materials necessary to present to the Grand Jury. The affidavit then requested that a writ be issued to the New York City Department of Correction ordering it to produce Santiago "so that said prisoner may meet with representatives of the United States Attorney's Office for the Southern District of New York in preparation for his Grand Jury appearance in the matter of United States v. Doe" -- the grand jury "undoubtedly" considering the charges ultimately brought against Santiago and the other defendants in the RICO case. Id. at __.
After a federal judge granted the writ, a DEA agent and an NYPD officer removed Santiago from Rikers Island and took him to the Manhattan office of the DEA. Santiago, however, never met with any AUSA in preparation for any grand jury testimony, nor did he ever testify in any proceeding. Moreover, the government conceded that the agents neither notified Santiago's lawyer in his pending state cases about the interview, nor provided a different lawyer to represent him on the potential federal charges. The DEA agent testified that he advised Santiago of his Miranda rights; Santiago, in turn, testified that he repeatedly requested counsel.
During the interview, Santiago was not questioned about the pending state charges. He was, however, questioned about the membership and activities of the Power Rules gang, and he made a number of incriminating statements about his own membership and activities with the gang.
Santiago then moved the district court in his federal criminal case to suppress his incriminating statements on the ground that he was unconstitutionally denied his right to counsel. The court agreed and suppressed the statements.
The district court began by finding that the application for the writ of habeas corpus ad testificandum was misleading, because "Santiago never met with any representative of the United States Attorney's Office, never prepared for any grand jury testimony and never testified in a grand jury," and that Santiago's testimony that he repeatedly requested counsel during the interview was credible. Id.
The court then turned to the question of whether, given that Santiago's request for counsel during the interview was denied, his incriminating statements were taken in violation of his Sixth Amendment rights. The court quickly concluded that they were under New York law: "Once a defendant in custody on a particular matter is represented by or requests counsel, custodial interrogation about any subject, whether related or unrelated to the charge upon which representation is sought or obtained, must cease." People v. Steward, 88 N.Y.2d 46, 50-51 (1996).
The court also concluded that Santiago's statements were also taken in violation of federal law, because the charges under investigation were "inextricably intertwined" with the pending state charges. "In determining whether the pending and impending charges are 'closely related' or 'inextricably intertwined,' courts have established a number of criteria, including similarities of time, place, person, and conduct." Santiago, __ F. Supp. at __ (citing Arnold, 106 F.3d at 41; Kidd, 12 F.3d at 33 ("In order to fall within this exception, the offense being investigated must derive from the same factual predicate as the charged offense.")). Such similarities were clearly present in Santiago's case.
First, the time was identical, given that the charged crack sales occurred during the course of the RICO/crack-distribution conspiracy.
Second, the place was nearly identical: Santiago's individual sales took place in the Bronx, as did the sales attributed to the Power Rules gang. Indeed, one of the uncharged sales and one of the charged sales were both alleged to have occurred on Union Avenue in the Bronx.
Third, although the identity of the participants in the charged and uncharged offenses were not precisely the same -- Santiago may have acted alone in selling the crack, whereas the federal charges involved a "large-scale, well-organized group effort to distribute crack" -- "it is not unreasonable to assume that Santiago's source for the crack was a member of the Power Rules group." Santiago, __ F. Supp. at __.
Fourth, the conduct, distribution of crack cocaine, was the same. See Arnold, 106 F.3d at 42 (noting that the "same conduct" analysis turns on whether the acts in question were of the same general type, not whether they were the very same act).
Those similarities, according to the district court, were "more than sufficient to support a conclusion that the charged and uncharged offenses were 'closely related.'" Id. at __. The court thus concluded that "Santiago's questioning in the absence of counsel . . . violated his Sixth Amendment rights" and suppressed the incriminating statements.
It is also worth noting that, in addition to suppressing Santiago's statements, the district court strongly criticized the government's abuse of the writ of habeas corpus ad testificandum (a subterfuge that occurrs often in the federal courts). Pointing out that using the writ "to facilitate investigative interviews with law enforcement officers . . . is engaged in with precious little authorization from either the statutory language or the courts,"Judge Scheindlin concluded:
What went wrong here is obvious. Law enforcement agents of the Joint Task Force should not be considered "representatives of the United States Attorney's Office." [Nevertheless,] agents were allowed to question a prisoner who was the target of the federal investigation, in the absence of either a representative of the United States Attorney's Office or his own counsel. The agents used the writ to obtain an uncounseled confession, which the Government now seeks to introduce in evidence. What occurred here is exactly what the district judge feared when she asked the AUSA if "the person would have the opportunity to speak with an attorney or if the Government intended to call him before the Grand Jury without his consulting with counsel." This behavior is inappropriate and should not be permitted.
Id.at __.
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