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, a member of his firm, for his invaluable assistance in the preparation of this column.
The Strange World of Whitey Bulger; Or Difficulty of Challenging the Necessity of Electronic Surveillance
For more than two decades, James J. "Whitey" Bulger was a notorious gangster, the leader of Boston's Winter Hill Gang, a criminal organization involved in everything from racketeering to drug trafficking to murder and closely tied to La Cosa Nostra ("LCN"), the Mafia. In a series of extraordinary developments, the Justice Department was recently forced to admit that Bulger was also an FBI informer the entire time. See Fox Butterfield, "Use of Informers May Taint FBI Cases," New York Times, June 16, 1997, at A8.
The Justice Department's stunning revelation explains why the Boston police were never able to convict Bulger, despite the fact that until he finally disappeared in 1995 -- just days before he was indicted for racketeering and extortion by federal prosecutors -- he lived for years in the same house in Boston, not far from the home of his brother, William M. Bulger, the perennial president of the Massachusetts Senate. The Massachusetts state police always believed that Bulger was protected by someone in the federal government during his tenure as the head of the Winter Hill Gang; his ability to avoid physical and electronic surveillance, to say nothing of indictment, was simply too polished to be coincidental. In early 1980, for example, Bulger and his partner in crime, Stephen "The Rifleman" Flemmi stopped going to a garage on Boston's Lancaster Street the same day that an assistant district attorney for Suffolk County managed to convince a judge to allow the garage to be bugged. See Kevin Cullen, "Focus Turns to Fugitive Bulger's FBI Ties," The Boston Globe, May 29, 1997. Similarly, later that year Bulger and Flemmi stopped using a bank of pay phones outside a Howard Johnson's hotel the same day the Boston police tapped the phones. Id. The state police, it turns out, were right.
Never one to admit that "mistakes were made," the FBI steadfastly defends its use of Bulger, arguing that he played an invaluable role in the federal prosecutions that decimated the New England branch of the LCN. One FBI agent summarized the deal: "Our interests dovetailed. It was business." Shelly Murphy, "Informants: Handle With Care," The Boston Globe, June 30, 1997. Moreover, the FBI insists that its treatment of Bulger followed standard agency guidelines for working with informers. Id.
The latter claim, however, is contradicted by Flemmi, whom the Justice Department now admits was also a long-time FBI informer. Flemmi has disclosed that, in exchange for their cooperation, the FBI promised him and Bulger that they could continue to commit crimes -- short of murder -- without fear of prosecution. See Patricia Nealon, "Flemmi Says He, Bulger Got FBI's OK on Crimes," The Boston Globe, June 26, 1997.
Not surprisingly, the FBI denies Flemmi's claim. Of course, the FBI also denied in and out of court for more than a decade that Bulger and Flemmi were informers. Moreover, a January 1995 report by the chief division counsel of the FBI's Boston office, discovered by the defense, concludes that Flemmi's FBI handlers at least tacitly authorized his participation in illegal gambling and LCN policy-making.
In addition to seriously embarrassing the FBI, the Justice Department's revelations concerning Bulger and Flemmi may well lead to the collapse of the DOJ's attempt to prosecute Bulger, Flemmi, and three other individuals -- Francis P. "Cadillac Frank" Salemme, James M. Martorano, and Robert DeLuca -- for a variety of RICO violations. See United States v. Salemme, Cr. No. 94-10287-MLW (D. Mass. 1997). The five defendants are alleged to have been part of a unique "association-in-fact" RICO enterprise consisting of individuals who joined together to use their association with the Winter Hill Gang and the Patriarca Family of the LCN to facilitate the enterprise's illegal activities -- among them the systematic extortion of bookmakers and drug dealers -- and to coordinate the activities of the Winter Hill Gang and the Patriarca Family.
On June 17, 1997, Judge Mark L. Wolf, a formal federal prosecutor, began evidentiary hearings to determine whether wiretap evidence the prosecution intends to use against the five defendants should be suppressed on the ground that the wiretaps would not have been authorized had the prosecution not concealed from the issuing judges the names and positions of the government's informers in the Winter Hill Gang and LCN. Judge Wolf also intends to consider whether the indictment should be dismissed on the ground of prosecutorial misconduct relating to the government's use of Bulger, Flemmi, and other informers, as well as the government's deliberate failure to disclose its use of informers to the court and to the defendants' attorneys. Those hearings were continuing as of January 6, 1998.
The long and tangled history of Salemme is worth telling in some detail, not only because it illustrates the government's willingness to misuse informers to obtain convictions, but also because it demonstrates just how difficult it is for defense attorneys to discover and rectify that abuse. Had it not been for the tireless dedication of the defendants' team of attorneys in Salemme -- Anthony J. Cardinale and John Mitchell for Salemme; Cardinale for DeLuca; Marty Weinberg for John V. Martorano; Michael C. Bourbeau for James M. Martorano; and Kenneth J. Fishman for Flemmi -- the government's extraordinary misconduct might never have come to light.
The Wiretaps
At issue in Salemme is the validity of the interception orders for three electronic listening devices that the government obtained between 1984 and 1991.In 1984, the government sought and received a court order authorizing the DEA and FBI to place a bug in an automobile used by Bulger and Flemmi. The bug was intended, at least in part, to obtain evidence of the participation of Bulger, Flemmi, and their associates in drug and gambling offenses. Order of May 22, 1997, at 8.
On October 27, 1989, the government obtained a court order authorizing it to use a roving wiretap against the five defendants. That roving wiretap was eventually used to intercept an LCN induction, known as the LCN "Halloween Induction Ceremony," held two days later, on October 29, 1989, at 34 Guild Street, Medford, Massachusetts. Order of May 22, 1997, at 27.
On December 10, 1991, the government applied for and received judicial authorization to use a roving wiretap targeting Kenneth Guarino, Natalie Richichi, and Salemme. The roving wiretap ultimately intercepted conversations between Salemme and DeLuca at a Hilton Hotel that the government intends to use to prove the RICO charges in the indictment. Order of May 22, 1997, at 38.
Ferrarra
The validity of the roving wiretap that intercepted the Halloween Induction Ceremony was first challenged in 1991, in another case before Judge Wolf, United States v. Ferrarra, 771 F. Supp. 1266 (D. Mass. 1991). In Ferrarra, defense attorneys for seven members of the Patriarca Family, including Tony Cardinale and Marty Weinberg, moved to suppress all of the evidence obtained through the roving wiretap on the ground, inter alia, that the government had obtained judicial authorization for the wiretap through an affidavit that the government knew to contain false information, in violation of Franks v. Delaware, 438 U.S. 154 (1978). In particular, the lawyers alleged that the government intentionally failed to inform the issuing judge that, on the basis of information provided by informers, it had reason to believe that the Halloween Induction Ceremony would occur at 34 Guild Street on October 29 and thus did not need a roving wiretap to find and tape the ceremony. Ferrarra, 771 F. Supp. at 1307. Franks applies to omissions from a wiretap application or affidavit, and to affirmative misrepresentations. See, e.g., United States v. Ippolito, 774 F.2d 1482, 1486 (9th Cir. 1985); see also United States v. Hadfield, 918 F.2d 987, 993 (1st Cir. 1990).Judge Wolf agreed with the defense lawyers that, by omitting the informer information, the government failed to satisfy "its obligation to make a full and complete statement concerning the practicality of specifying in conventional terms a location to be bugged pursuant to the requested warrant," as required by 18 U.S.C. 2518(1)(c). Ferrarra, 771 F. Supp. at 1307.
He disagreed, however, that these actions violated Franks. To prevail under Franks, the defense must show (1) that the challenged information was known to be false or was presented with reckless disregard for its possible falsity; and (2) that the challenged information was material to the issuance of the warrant. Franks, 438 U.S. at 156.
In Judge Wolf's view, the defense failed to satisfy both requirements. First, he concluded that, in light of the relatively new provisions of Title III concerning roving wiretaps, the Special Attorney who filed the application for the roving wiretap did not omit the informer information in a deliberate attempt to mislead the issuing judge. Ferrarra, 771 F. Supp. at 1307. Second, Judge Wolf concluded that the omitted informer information was not material, because the issuing judge, "like any reasonable judge, would nevertheless have authorized electronic surveillance of 34 Guild Street." Id. at 1310.
Salemme
At the time Judge Wolf issued his decision in Ferrarra, neither he nor the defense had information indicating that Bulger and Flemmi were government informers during their tenure with the Winter Hill Gang and the Patriarca Family. By the time Bulger, Flemmi, Salemme, Martorano, and DeLuca were indicted, in 1995, the situation had changed dramatically: although the Justice Department had yet to admit Bulger and Flemmi's informer status, Tony Cardinale, Marty Weinberg, and the other defense lawyers had marshaled for Judge Wolf "substantial direct and/or circumstantial evidence indicating that during relevant periods Bulger, Flemmi, Mercurio, and Guarino were cooperating with the FBI." Order of May 22, 1997, at 7. Judge Wolf thus recognized that his analysis of the defendants' motion to suppress in Salemme would have to be quite different than his analysis in Ferrarra: whereas "[t]he facts known to the defendants and the court at the time of the Ferrarra decision did not require the court to confront the question whether electronic surveillance was not necessary at all because of the availability of cooperating individuals," the necessity of electronic surveillance "at all" would be precisely the issue in Salemme. Order of May 22, 1997, at 31.On May 22, 1997, Judge Wolf concluded that the defendants in Salemme were entitled (1) to evidentiary hearings on their motion to suppress the 1984 automobile wiretap, the 1989 34 Guild Street roving wiretap, and the 1991 Hilton Hotel roving wiretap, and (2) to discovery concerning whether Angelo "Sonny" Mercurio, Robert Donati, Bulger, Flemmi, Anthony "The Saint" St. Laurant, and Kenneth Guarino "were at relevant times secretly providing information to the government." Order of May 22, 1997, at 3.
1984 Automobile Wiretap
Judge Wolf began by analyzing the 1984 automobile wiretap the government used to obtain evidence of the participation of Bulger, Flemmi, and others in various drug and gambling offenses. The defense argued that, in light of their evidence that Bulger and Flemmi were government informers at the time the wiretap was authorized, the wiretap was not "the only reasonably likely method of gathering competent evidence of these offenses," as required by 18 U.S.C. 2518(1)(c).18 U.S.C. 2518(1)(c) provides, in relevant part, that an application for an order authorizing electronic surveillance must include:
a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.
18 U.S.C. 2518(1)(c); see also Ippolito, 774 F.2d at 1486 ("holding that, before resorting to a wiretap, "the government must show, and the issuing court must find, that normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time."); United States v. Castillo-Garcia, 117 F.3d 1179, 1187-88 (10th Cir. 1997) (holding that, to show necessity for purposes of 18 U.S.C. 2518(1)(c), the government must either try or explain with particularity why it did not try four investigative procedures less-invasive than electronic surveillance: (1) standard visual and aural surveillance; (2) questioning and interrogation of witnesses and participants; (3) use of search warrants; and (4) infiltration of conspiratorial groups by undercover agents or informants).
The "necessity" requirement of 18 U.S.C. 2518(1)(c) is rooted in Congress' desire "to ensure that the relatively intrusive device of wiretapping is 'not resorted to in situations where traditional investigative techniques would suffice to expose the crime," United States v. Edwards, 69 F.3d 419, 429 (10th Cir. 1995) (citation omitted), and is absolute: the government is obligated to disclose to the court all of the information it possesses relevant to the necessity of the wiretap. Failure to disclose all relevant information is subject to Franks analysis. Ippolito, 774 F.2d at 1485.
Because of the absolute duty imposed by 18 U.S.C. 2518(1)(c)'s necessity requirement, Judge Wolf had little difficulty in concluding that the defense was entitled to a Franks hearing on whether the evidence obtained through the 1984 automobile wiretap should be suppressed. In his view, the defendants had clearly made the "substantial preliminary showing" necessary for such a hearing. Franks, 438 U.S. at 170.
First, with regard to the "good faith" requirement of Franks, Judge Wolf noted that although the government did not identify either Bulger or Flemmi as informers when it applied for the 1984 automobile wiretap, all of the available evidence presented by the defense lawyers indicated that they were: the media had often reported that during the relevant time period Bulger had been working for a special agent of the FBI; the fruitlessness of the 1984 surveillance had led the DEA to believe that Bulger had been tipped off to the existence of the automobile wiretap; Bulger's disappearance immediately after the Salemme indictment was returned indicated that someone in the federal government was protecting him; and, most directly, "[i]n the course of hearings on the present motions, in response to a question from the court, Flemmi disclosed that he had during much of the period relevant to this case been an informant for the FBI." Order of May 22, 1997, at 16-17. The last fact alone, Judge Wolf concluded, entitled the defense to a Franks hearing on the 1984 automobile wiretap. Id. at 18.
Second, with regard to Franks' "materiality" requirement, Judge Wolf noted that the defendants had produced evidence - of particular importance, the report by the chief division counsel of the FBI's Boston office mentioned earlier - that Flemmi's FBI handlers had tacitly authorized him to participate in illegal gambling. According to Judge Wolf, that evidence was sufficient to satisfy the materiality prong:
knowledge that Flemmi's participation in illegal gambling had been tacitly approved by the FBI would, arguably, have caused a reasonable judge to have denied the 1984 and 1985 requests for electronic surveillance that was purportedly intended, in meaningful measure, to obtain evidence of Flemmi's gambling activity.
Order of May 22, 1997, at 19.
Having determined that the defendants were entitled to an evidentiary hearing, the judge then granted Cardinale and Weinberg's discovery requests concerning whether and in what capacity Mercurio, Donati, Bulger, Flemmi, St. Laurant, and Guarino were government informers. He noted that the prosecution generally does not have to confirm or deny the existence of identity of its informers. See, e.g., United States v. Estrella, 567 F.2d 1151, 1153 (1st Cir. 1977). The Supreme Court has also explicitly held, however, that "where the disclosure of the informant's identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to the fair determination of a cause, the privilege must give way." Roviaro v. United States, 353 U.S. 53, 60-61 (1957).
Under the circumstances, Judge Wolf concluded, the defendants were clearly entitled to discovery concerning the informer status of Mercurio, Donati, Bulger, Flemmi, St. Laurant, and Guarino.
First, such discovery is necessary to allow the defendants' to challenge the RICO counts of the indictment. The indictment charges that Bulger and Flemmi were integral members of the conspiracies to violate RICO and to extort bookmakers and drug dealers, and names Bulger and Flemmi as two of the five members of the alleged RICO enterprise. That being the case,
[i]f informed that Bulger, as well as Flemmi, was cooperating with the government during the relevant period, it is foreseeable that the other defendants are likely to argue at trial that Flemmi and Bulger were government agents; that, therefore, they were not members of the conspiracies or RICO enterprise alleged in the indictment; and, thus, that the conspiracies and substantive RICO offenses charged in the indictment have not been proven.
Order of May 22, 1997, at 23 (citations omitted).
Second, "if Bulger and Flemmi were informants, their co-defendants are likely to contend that their statements may not be admitted under Federal Rule of Evidence 801(d)(2) because they were not truly co-conspirators." Order of May 22, 1997, at 24 (citation omitted).
Third, "it is foreseeable that if both Bulger and Flemmi were secretly providing information to the government during the period relevant to this case, the defendants may contend that they have been entrapped or otherwise victimized by government misconduct." Order of May 22, 1997, at 24-25.
Indeed, in regard to the entrapment and government misconduct issue, Judge Wolf noted that defendants had made similar arguments in a series of Eastern District of New York cases involving Gregory Scarpa, a member of the LCN who was also an FBI informant for many years. In one case, in which Scarpa's status was discovered prior to trial, a federal jury in Brooklyn acquitted seven members of the Columbo crime family on charges of conspiracy to murder. Selwyn Rabb, "The Thin Line Between Mole and Manager," New York Times, July 2, 1995, at A25. And in two cases in which Scarpa's status was not discovered until after trial, one judge granted a new trial to three defendants on the basis of that newly discovered information. See United States v. Persico, CR-92-0351 (E.D.N.Y. Feb. 18, 1997) (granting new trial); but cf. Orena v. United States, 956 F. Supp. 1071 (E.D.N.Y. 1997) (refusing to grant new trial).
1989 Roving Wiretap
The judge then turned to the 1989 roving wiretap used to record the Halloween Induction Ceremony at 34 Guild Street. He began by summarizing his earlier decision in Ferrarra, discussed above, in which he had found that the government had omitted information concerning its knowledge that 34 Guild Street was going be used for the ceremony on October 29, but held that the omissions were neither material nor made in bad faith. That holding, Judge Wolf noted, was undermined by the defendants' new evidence in Salemme, evidence indicating that Mercurio and Donati were informers when the government applied for the roving wiretap:if [that evidence] is correct, Mercurio and Donati would have learned the address of the ceremony on Wednesday, October 25, 1989. If true, this would draw into question the court's prior finding that the government did not learn the address until October 27, 1989, and, therefore, would require the court to reconsider its finding that the government's failure to disclose to the court the information it received regarding 34 Guild Street was a good faith, reasonable error.
Moreover, if true, the failure of the application to disclose, or adequately describe, Mercurio and/or Donati as informants is relevant to whether the government made the "full and complete statement" concerning necessity required by 2518(1)(c).
Order of May 22, 1997, at 33-34.
Judge Wolf then held that, because the defense lawyers had made a "substantial preliminary showing" that their new evidence was correct -- for example, the media had consistently reported that Donati was an informer -- the defense was entitled to a Franks hearing on the 1989 roving wiretap and to discovery concerning whether and to what extent Mercurio and Donati were government informers. Id. at 35
1991 Roving Wiretap
Finally, Judge Wolf examined the 1991 roving wiretap used to intercept conversations between Salemme and DeLuca in a Hilton Hotel. In obtaining authorization for that roving wiretap, the government had represented (1) that Guarino was "an associate of the Patriarca Family. . . believed to be operating pornography businesses"; (2) that a roving wiretap was necessary because other investigative techniques were not likely to succeed partly because the suspects, including Guarino, would not be willing to be interviewed; and (3) that no informant could provide the evidence of Salemme's role in money-laundering that the roving wiretap was likely to provide. Id. at 37.All of those representations were either misleading or false, because the new evidence presented by the defendants in Salemme indicated that both St. Laurant and Guarino were secretly cooperating with the government in 1991. As Judge Wolf pointed out, the new evidence indicated that both St. Laurant and Guarino consistently received favorable treatment from law enforcement, and that St. Laurant had been named as a government informer by another cooperating individual. Id. at 39. Moreover, the government had never specifically denied that Guarino was an informer. Id. at 41.
Based on the new evidence presented by the defense lawyers, Judge Wolf held that they were entitled to a Franks hearing on the 1991 roving wiretap:
If Guarino was cooperating, the defendants appear to have a strong argument that the government did not make the "full and complete statement[s]" required by 18 U.S.C. 2518(1)(c) and 11(a)(ii), and that this omission was material not only to the necessity for a roving warrant, but to the reasonableness of authorizing any electronic surveillance at all. More specifically, as the application emphasized the importance of obtaining evidence against Guarino, among others, it is obviously arguable that a reasonable judge could find it important that Guarino was an informant rather than a target of the investigation.
Id. at 41-42.
On June 3, 1997, the prosecution responded to the May 22, 1997, Order by (1) disclosing for the first time to the judge and to the defendants that Bulger was an FBI informant for much of the time period relating to the indictment; (2) conceding that Judge Wolf properly ordered Franks hearings on the three wiretaps; (3) "respectfully" declining, on the authority of Acting Deputy Attorney General Seth P. Waxman, to confirm or deny the informer status of anyone other than Bulger; and (4) moving Judge Wolf to reconsider his order with respect to the informer status of Mercurio, Donati, Guarino, and St. Laurant. The defendants opposed the motion to reconsider, and asked Judge Wolf to hold Waxman in civil contempt.
Three days later, on June 6, Judge Wolf issued an order that rejected the prosecution's motion to reconsider and discussed the implications of the refusal to comply with his May 22, 1997, order.
According to Judge Wolf, the refusal "present[ed] the Acting Deputy Attorney General with a choice: either to disclose or to suffer an adverse consequence to its case." Order of June 6, 1997, at 15 (quoting United States v. Russotti, 746 F.2d 945, 949 (2d Cir. 1984)). The judge identified two possible adverse consequences of continuing to fail to comply with his earlier order: (1) the exclusion at trial of all evidence obtained through or derived from the three wiretaps; or (2) dismissal of the indictment for extreme government misconduct. Id.
The judge also held that, if the prosecution continued to refuse to comply with the earlier order, Waxman himself -- not one of his subordinates -- would have to appear to respond to the defendants' motion that he be held in civil contempt. Id. at 16.
On June 12, the prosecution responded to the June 6 order by stating that if Judge Wolf did not reconsider his position with respect to the informer status of Mercurio, Donati, Guarino, and St. Laurant, "the government believes that the appropriate remedy would be an order conditionally excluding intercepted communications until such time as the government complies with the court's order of June 6, 1997." The prosecution also argued that Judge Wolf did not have the power to dismiss the indictment as a sanction for its refusal to comply with his original discovery order.
On June 13, in an order notable for its thinly-veiled contempt for the prosecution's position, Judge Wolf rejected both of those claims. First, he correctly recognized that the government was attempting to bait him into issuing a conditional exclusion order that would allow it to both (1) immediately appeal the discovery order (before the evidentiary hearings had been held), and (2) allow it to comply with that order, thereby avoiding sanctions, if it lost the appeal. Judge Wolf refused to take the bait; noting that the First Circuit has held that "prior to any attempted appeal the government must 'commit itself to a course of action which makes exclusion, practically speaking, inevitable,'" Order of June 13, 1997, at 3 (quoting United States v. Kane, 646 F.2d 4,8 (1st Cir. 1981)), he informed the government that:
[i]f unsuccessful on appeal, the government would not necessarily be allowed to revise its decision not to disclose and cause the court to vacate the decision to exclude the intercepted communications at issue but, instead, conduct the Franks hearings that have now been ordered to determine whether suppression is required.
Id. at 3-4.
Judge Wolf also rejected the claim that he lacked the power to dismiss the indictment. He acknowledged that "in the typical case" the appropriate remedy for a refusal to confirm or deny the identity of an informant in connection with a Franks hearing would be suppression of the evidence at issue." Id. at 4 (quoting Russotti, 746 F.2d at 948). He pointed out, however, that there may well be "atypical cases in which the more drastic remedy of dismissal is justified," Id., citing United States v. Morrison, 449 U.S. 361, 366 n.2 (1981) ("[W]e note that the record before us does not reveal a pattern of recurring violations by investigative officers that might warrant the imposition of a more extreme remedy in order to deter future lawlessness."), and Bank of Nova Scotia v. United States, 487 U.S. 250, 259 (1988) ("[W]e note that we are not faced with a history of prosecutorial misconduct, spanning several cases, that is so systemic and pervasive as to raise a substantial and serious question about the fundamental fairness of the process which resulted in the indictment."). See also United States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1993) (remanding to the district court "to determine whether to retry the defendants or dismiss the indictment with prejudice as a sanction for the government's misbehavior"); United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) ("Should the court uncover egregious wrongdoing by the government . . . nothing in this opinion forecloses consideration by the court of dismissing the indictment for outrageous government conduct.").
Without ruling on the issue, Judge Wolf then noted that the intentional deception of a number of federal judges concerning the informer status of Bulger, Flemmi, and others supported finding Salemme to be the "atypical case" in which dismissal of the indictment might be warranted. Id. at 5-7.
Finally, the judge pointed out that, if he ultimately decided to suppress evidence obtained through the 34 Guild Street roving wiretap, Salemme would not be the only case affected by that decision -- all of the other cases in which courts admitted the recording of the Halloween Induction Ceremony, such as Ferrarra and United States v. Bianco, 998 F.2d 1112, 1119-20 (2d Cir. 1993) (upholding conviction in case in which district court admitted the recording would also be affected). He thus suggested that, "unless the government intends to agree that the Mafia induction ceremony . . . should have been excluded in all those other cases, it may wish to reconsider and decide to produce the information necessary for the previously ordered Franks hearing in this case." Order of June 13, 1997, at 8.
Reconsider it did: on June 18, 1997, the prosecution produced Mercurio to testify before Judge Wolf. Not surprisingly, he supported the defense's contentions: "Mercurio testified that he was cooperating with the government in connection with the October 29 LCN induction ceremony." Order of June 19, 1997, at 4. And on June 20, the government informed Judge Wolf that Donati had not been a confidential informant. Order of June 27, 1997, at 1.
To date, the Franks hearings ordered by Judge Wolf have not been completed. The outcome of Salemme, therefore, is still very much in doubt. Will Judge Wolf punish the government for its continual and deliberate deception of him, the judges who issued the 1984, 1989, and 1991 wiretaps, and the defendants? Or will the judge simply accept the prosecution's cynical view that, no matter how egregious the government misconduct, the ends justify the means when the target is organized crime?
Regardless of what happens, Salemme raises an important question (one of many) concerning the government's ability to use electronic surveillance: namely, how can defense attorneys effectively challenge the assertion that electronic surveillance is necessary in cases that are less high-profile than Salemme? The defense in Salemme benefitted from the fact that the media was intensely interested in finding out whether Whitey Bulger was an FBI informer; that interest, combined with the great skill and extraordinary efforts of the defense lawyers (to say nothing of their involvement in years of litigation concerning a number of defendants alleged to be members of the New England chapter of the LCN), produced enough "direct and/or circumstantial evidence" of Bulger's informer status -- as well as the informer status of many of his colleagues -- to overcome "the government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Roviaro, 353 U.S. at 59.
Salemme, however, is not the typical case -- it's not every day that a high-ranking organized crime figure turns out to be an FBI informer for over two decades. Normally, the informer whose identity the government conceals when it applies for authorization for a wiretap will be the small-time hood or a citizen in whom neither the media nor anyone else has much interest. If so, even the most skilled defense attorney is likely to be unable to effectively challenge the showing of necessity required by 18 U.S.C. 2518(1)(c), however absolute that requirement may be. Even if the lawyer suspects that the prosecution is concealing the identity of an informer, he or she will not be able to present any credible evidence of that fact to a judge, and will thus not get the foundational discovery required to confirm or deny that suspicion.
In the "normal" case, in short, defense attorneys are faced with the same dilemma that recurs throughout the criminal law: for all practical purposes they must get discovery to make the "substantial preliminary showing" necessary to get discovery. A more vicious circle can hardly be imagined.
The 'Necessity' Requirement Revisited: San Francisco District Judge Suppresses Wiretap Evidence
In another recent case involving the "necessity" requirement of 18 U.S.C. 2518(1)(c), Judge Vaughn R. Walker of the United States District Court for the Northern District of California suppressed all of the evidence obtained through a wiretap on the ground that "government agents engaged in a deliberate attempt to mislead the court" concerning the necessity of resorting to electronic surveillance. United States v. Ailemen, No. CR-94-0003-VRW (N.D. Cal. Oct. 24, 1997).
On July 11, 1994, the government obtained a 42-count indictment against 18 defendants, charging them with being involved in a large-scale drug smuggling organization allegedly headed by Pius Ailemen. Much of the evidence used to obtain the indictment was acquired through a July 29, 1993, wiretap. The defendants moved to suppress the evidence on the ground that the wiretap was erroneously authorized.
After an unusual seven-day evidentiary hearing, the magistrate judge, in a 129-page Report and Recommendation, agreed with the defense and recommended that the district court grant the motion to suppress. See United States v. Ailemen, No. CR-94-0003 VRW (N.D. Cal. May 22, 1997) (Brazil, Magistrate J.).
Following extensive and persuasive briefing by Ailemen's defense attorney, Gail R. Shifman of San Francisco, and the other defense lawyers, Judge Walker agreed with the magistrate judge's Report and Recommendation. According to Judge Walker, there were at least five "misstatements and omissions in the affidavit submitted to the issuing judge" that warranted suppression of all of the evidence obtained through the wiretap. (The magistrate judge identified 17 misstatements and omissions.)
First, the Judge took issue with the affidavit's assertions that Ailemen's earlier acquittal on drug counts had left "his heroin trafficking organization intact," and that according to Oakland police Ailemen "is presently the largest volume heroin dealer in the City of Oakland area." Both statements, Judge Walker pointed out, were false -- not "mere puffery," as the government absurdly argued -- and represented a deliberate attempt to "exaggerate the difficulty of penetrating the Ailemen organization using traditional investigative techniques."
Id. at 12. Second, Judge Walker pointed out that the affidavit's statement that a wiretap was necessary to identify Ailemen's co-conspirators was also false, because the affidavit deliberately omitted at least seven persons the government knew or should have known were linked to Ailemen. The prosecution attempted to argue that it was not required to disclose the names of those persons, because it "never had enough evidence to charge them with any federal offense." Judge Walker, however, quite rightly rejected that argument, noting that although the argument was relevant to 18 U.S.C. 2518(1)(b)(iv), which requires the government to identify persons whose conversations the requested wiretap is likely to record, the argument was irrelevant to the necessity determination of 18 U.S.C. 2518(1)(c), which requires a "full and complete" statement of why the wiretap is necessary. Id. at 13-14; cf. United States v. Martin, 599 F.2d 880, 885 (9th Cir. 1979) ("In cases where probable cause is doubtful as to some conversers, an investigative agency should be encouraged to name more, rather than fewer, participants in the application.").
Third, Judge Walker concluded that the affidavit "was also drafted to mislead the issuing judge about the ability of [an undercover] agent . . . to penetrate the organization and learn more about its scope and sources of supply." Ailemen, No. CR-94-0003-VRW, at 18. The affidavit created the impression that Ailemen distrusted the undercover agent, Carl Estelle; in truth, however, "Estelle had gained the confidence of Ailemen in a remarkably short period of time," as indicated by the fact that in less than two months Estelle worked directly with Ailemen on a courier operation, was repeatedly offered large amounts of heroin, and was specifically told by Ailemen that, having purchased an ounce of heroin from Ailemen on one occasion, he was not suspected of being a government agent. Id. at 18-19. The affidavit conveniently omitted all of those relevant facts.
Fourth, Judge Walker noted that the affidavit did not disclose to the issuing judge that the government had failed to pursue two potentially-fruitful leads concerning the scope of Ailemen's organization. To begin with, in order to avoid having to disclose the existence of one of its confidential informers, Ailemen's landlord, the affidavit did not disclose his tip that Ailemen always paid his rent with money orders. Furthermore, contrary to the affidavit's claim that physical surveillance of Ailemen was ineffective, the agents had been able to successfully follow Ailemen to a check-cashing business that they believed Ailemen used to launder drug proceeds.
Fifth and finally, Judge Walker pointed out that the affidavit deliberately failed to disclose the fact that a known associate of Ailemen had been arrested in Canada on drug charges in 1992 but had failed to investigate whether the associate could be convinced to "roll-over" on Ailemen before applying for the wiretap. In Judge Walker's view, "the issuing judge would have insisted that the government explore whether this traditional law enforcement tactic held any promise" before authorizing the wiretap. Id. at 25.
In light of these five "misstatements and omissions," Judge Walker had little difficulty concluding that the affidavit failed to satisfy the necessity requirement of 18 U.S.C. 2518(1)(c). The affidavit identified three types of information that the government claimed it could not obtain through traditional means: (1) the sources of Ailemen's heroin supply; (2) the identities of Ailemen's co-conspirators; and (3) the financial structure of the organization. In fact, all three types of information were readily available through less-intrusive investigative procedures.
First, "[o]nce the omissions regarding agent Estelle's investigation and the Canadian investigation . . . are inserted" into the affidavit, "there was no need for the wiretap to identify the sources of Ailemen's heroin supply." Id. at 27. At one point during Estelle's investigation, Ailemen had suggested to Estelle that he travel with him to New York to meet his suppliers. Moreover, the Canadian investigation into Ailemen's associate disclosed two Pakistani sources of heroin who were doing business with Ailemen in 1992. Id.
Second, because the government had the names of at least seven persons suspected of being Ailemen's co-conspirators,
the investigators could have installed pen registers on the phones of at least some of these suspects, put covers on their mail, surveilled them or explored their financial transactions. Before the government took these conventional steps, there was no need for a wiretap to identify Ailemen's co-conspirators.
Id. at 29.
Third, to discover the financial structure of Ailemen's organization, the prosecution could have traced the money orders he used to pay his rent every month to their source and could have investigated the check-cashing business it believed Ailemen used to launder his drug-proceeds. Id.; see also Ippolito, 774 F.2d at 1486 ("We would flout the statutory intent that wiretaps be used only if necessary were we to sanction a wiretap simply because the government pursued 'normal' investigative strategies that were unproductive, when more fruitful investigative methods were available.")
Judge Walker also criticized the attempt to make up for the affidavit's evident deficiencies by including boilerplate language about the "necessity" of the wiretap -- the same type of patently-deficient language that appears in most wiretap applications. The judge was particularly troubled by the following passage:
For the reasons set out above, it is my opinion that normal investigative procedures available to law enforcement in the investigation of narcotics violators have been tried and have not been fully successful, are not reasonably likely to succeed if tried, or are too dangerous. It is my belief that the only reasonable way to develop the necessary evidence to discover and prosecute the persons involved in the above-described organization, to identify their locations and methods of operation, their sources of supply, and their financiers, managers, and supervisors, is to commence intercepting wire communications occurring to and from the cellular telephone number.
"Such generic language," Judge Walker correctly noted, "is far from specific about the inability of traditional methods to uncover specific information." Ailemen, No. CR-94-0003-VRW, at 27. Indeed, the Ninth Circuit has expressly prohibited "sidestepping" the necessity requirement with general allegations about "drug conspiracies," Ippolito, 774 F.2d at 1486, and has held that the affidavit's description of the investigative tactics that have been tried must be "sufficient to enable the district judge to determine, independently of an agent's assertions with respect to his or her other agents' experiences, that ordinary investigative techniques will not succeed." United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977) (emphasis added).
Even given all of the affidavits flaws, Judge Walker conceded that "[u]nder other circumstances," the flaws might be attributable to "carelessness or neglect." Id. at 32. Under these circumstances, however, the judge held, such an attribution was impossible, because the magistrate judge had found, during the seven-day hearing on the motion to suppress, that the affiant-agent's testimony was incredible -- he continually looked to the prosecution for guidance before answering questions posed to him on cross-examination. Id.
When the deceptive character of the affidavit is considered in the light of the agent's conduct at the evidentiary hearing, a pattern of behavior intended to obtain and protect the wiretap emerges and shows that the government acted without respect for the necessity requirement of 2518(1)(c). . . . Under these circumstances, the court has no alternative but to suppress the unlawfully obtained evidence.
Id. at 33-34.
The result in Ailemen is a compliment to the tenacity and imagination of his defense lawyer, Gail R. Shifman, as well as to the skill and dedication of all the defense attorneys in the case. Moreover, the manner in which the defense went about challenging the wiretap is a textbook example of how such a challenge should be made. The strategy employed is far more important than the specific evidentiary details of the case itself, although the magistrate judge's 129-page Report and Recommendation ought to be required reading for prosecutors attempting to properly draft a wiretap application, as well as for defense counsel contemplating an attack on the validity of such an application.
The defense strategy included convincing Judge Walker to create a discovery plan much like the plans regularly used in complex civil litigation, which enabled the lawyers to obtain, review, and organize thousands of pages of information concerning the prosecution's investigation of Ailemen's activities. The defense then used that information to challenge point-by-point the asserted justifications and boilerplate generalizations for seeking the wiretap. By showing how each justification or generalization was ultimately deceptive, the defense demonstrated clearly and forcefully that the affidavit was woefully inadequate to satisfy the "absolute" necessity requirement of 18 U.S.C. 2518(1)(c).
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