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.
Do Local Ethics Rules Apply to Federal Prosecutors? It Depends
In the last ten years, a deep divide has developed between circuit courts on the significant issue of whether federal prosecutors in criminal proceedings can ignore ethical rules adopted and enforced as local rules by federal district courts. In 1995, the First Circuit held that the U.S. District Court of the District of Rhode Island could incorporate in its local rules Rule 3.8(f) of the American Bar Association's Model Rules of Professional Conduct (as adopted by the Rhode Island Supreme Court) which required federal prosecutors to obtain judicial approval before subpoenaing a lawyer regarding client information. Whitehouse v. United States District Court of Rhode Island, 53 F.3d 1349 (1st Cir. 1995), aff'g in part, rev'g in part, Almond v. U.S. District Court, 852 F. Supp. 78 (D.N.H. 1994). Although the First Circuit previously reached the same conclusion on nearly identical issues arising in Massachusetts in United States v. Klubock, 832 F.2d 649, 658 (1st Cir. 1986) ("Klubock I"), it later vacated that decision and on reconsideration en banc (by an equally divided court) upheld the enforceability of the ethical rule on prosecutors. Because of the three to three decision, however, the vacation of the first opinion left no controlling precedent to follow. See United States v. Klubock, 832 F.2d 664 (1st Cir. 1987) (en banc) ("Klubock II").
Yet in stark contrast to the First Circuit's 1995 decision in Whitehouse and earlier in Klubock, the Third Circuit Court of Appeals in Baylson v. Disciplinary Board of the Supreme Court of Pennsylvania, 975 F.2d 102 (3rd Cir. 1992) reached the exact opposite and incorrect conclusion when it struck down a local Pennsylvania rule substantially identical to the Rhode Island and Massachusetts ethical rules governing and restricting a federal prosecutor's issuance of subpoenas of defense attorneys for client information, on the grounds that it exceeded the district court's rule-making authority (See May 1994, Jan./Feb. 1993, Jan. 1987, and Nov. 1986 RICO Reports).
The latest battle over the rule has arisen in Colorado. United States v. Colorado Supreme Court, 1998 WL 3433 (D.C. Colo. 1998). In February 1997, the United States Attorney for Colorado, Timothy P. Garren, filed a civil action seeking declaratory and injunctive relief to prevent defendants from enforcing state rules of professional conduct against federal prosecutors. Specifically, federal prosecutors asserted that Rules 3.3(d) and 3.8(f) of the Colorado Rules of Professional Conduct (incorporated into the Local Rules of the United States District Court for the District of Colorado, Rule 83.6) violated the Supremacy Clause of the United States Constitution in so far as they applied to the conduct of federal prosecutors in the investigation and prosecution of federal crimes. See United States v. Colorado Supreme Court, 871 F.Supp. 1328, 1330 (D.Colo. 1993). Although the U.S. Attorney's case was originally dismissed by the federal district court on the grounds that no case or controversy existed on the matter, the United States Court of Appeals for the Tenth Circuit reversed and remanded, holding that the complaint sufficiently alleged the injury in fact required for standing. See United States v. Colorado Supreme Court, 87 F.3d 1161 (10th Cir. 1996). Back before the district court on a motion for summary judgment, the court recently considered the constitutionality of the rules as enacted and amended.
The Colorado district court, with the baby-splitting instincts of King Solomon, has now ruled that although there is no question that the ethics rules apply to federal prosecutors' practicing in criminal proceedings, such ethical rules requiring prosecutors to satisfy special conditions before subpoenaing a lawyer to present evidence about a past or present client violates the Supremacy Clause when narrowly applied to federal prosecutors practicing before a grand jury. Rule 3.8(f)(1), as adopted in Colorado, forbids subpoenaing a lawyer unless the prosecutor reasonably believes that the information sought is not privileged, the evidence is essential to the successful completion of an investigation or prosecution, and there is no feasible way of getting the information otherwise.
The Colorado district court's decision to exempt federal prosecutors from these ethical constraints in the grand jury context is unfortunately based on a distinction without a difference. While it is true that the Supreme Court has been reluctant to accept state mandated restraints on federal grand jury proceedings, (See e.g. United States v. Williams, 504 U.S. 36, 47, 112 S. Ct. 1735 (1992) (striking down the Tenth Circuit's rule mandating that prosecutors present exculpatory evidence to the grand jury)), the Colorado court's reliance on that decision is misplaced insofar as that decision dealt with independent grand jury conduct rather than enforcement of ethical rules governing attorneys appearing before it. The Colorado court relied incorrectly on the decision in Williams, in which the Supreme Court distinguished the appropriate use of "supervisory" judicial authority over its own members as opposed to a grand jury proceeding:
. . .Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such supervisory judicial authority
exists. . . . Williams, 504 U.S. at 47.
The Williams decision by no means prevents a prosecutor or a defense attorney from being sanctioned for ethical violations attendant to representation of clients involved in grand jury proceedings; it only rejects the mandated disclosure of exculpatory evidence in grand jury proceedings.
The Colorado district court also reached the same decision in part recognizing that, like ABA Model Rule 4.2 which prevents a prosecutor from having direct contact with clients who are represented by counsel, Rule 3.8(f)(1) appropriately limits prosecutors' conduct at trial much the same way. Also underscored by the Colorado court, "this nearly universal ethical restriction on prosecutorial conduct has consistently been upheld." Colorado Supreme Court, 1998 WL 3433 at *3, citing United States v. Lopez, 4 F.3d 1455, 1461 (9th Cir. 1993). Holding that Rule 3.8(f)(1) is valid and enforceable, except as it pertains to federal prosecutors practicing before the grand jury, the Colorado District Court once again makes it clear that such a rule is enforceable and appropriate. As the court emphasized, the substantive requirements of the rule essentially require a prosecutor to conduct an investigation and have a reasonable belief that the information sought is not privileged and is essential to the prosecution. Moreover, a prosecutor must have no other reasonable alternative to obtain the information. Finding that these rules are not "stringent" and "are derived from common sense," the district court ruled that they do not exceed the power of the courts and are not inconsistent with existing law on attorney-client privilege, nor the federal Supremacy Clause. Id.
Certainly the reasoning in Whitehouse, which overwhelmingly affirms a district court's powers to police the conduct of attorneys practicing both before grand juries and in the trial courts, is the more logical approach. Whitehouse emphasized that such a rule is directed at subpoenas sought by prosecutors and not at independent grand jury action. Certainly such a rule merely authorizes a district court to reject a prosecutor's attorney-subpoena application for the traditional reasons that would justify quashing the subpoena, i.e., the information is privileged or compliance would be unreasonably burdensome. While a portion of the Colorado District Court's decision is certainly sound, its removal from the rule of prosecutors' involvement with grand jury proceedings fails to recognize the serious "ethical and legal implications of prosecutors subpoenaing lawyers for the purpose of compelling evidence concerning their clients" in a grand jury forum. Service of a grand jury subpoena on an attorney can: (1) chill the relationship between lawyer and client; (2) create an immediate conflict of interest for the attorney/witness; (3) divert the attorney's time and resources away from the client; (4) discourage attorneys from providing representation in controversial criminal cases; and (5) force lawyers to withdraw as counsel because of ethical rules prohibiting an attorney from testifying against the client.
These concerns are among the core values that are threatened by the irresponsible use of subpoenas directed to defense lawyers. The district court's decision in Colorado, while certainly reaffirming the enforceability of local rules on federal prosecutors, falls short by exempting prosecutors from appropriate ethical restraints in grand jury matters.
Hall of Shame
As recent pictures of a haggard and upset Marcia Lewis emerging from Kenneth Starr's inquisition demonstrate, testifying before a grand jury is often, if not usually, a harrowing experience for a witness. Only jurors, witnesses, and the prosecuting attorney are permitted in the grand jury room. Fed. R. Crim. P. 6(d); United States v. Schell, 775 F.2d 559, 565 (4th Cir. 1985). Indeed, the witness is not even allowed to have his lawyer present; if a witness wants to consult with a lawyer, he/she must leave the room. See, e.g., United States v. Plache, 913 F.2d 1375, 1380 (9th Cir. 1990) (holding that witness has "a right to consult with an attorney outside the grand jury room during the proceedings"). Moreover, even the witness' right to consult with a lawyer outside the grand jury room is not unqualified; some courts limit the number of times a witness may leave the room for such consultation. See, e.g., In re Grand Jury Proceedings (Lowry), 713 F.2d 616, 617-18 (11th Cir. 1983) (holding that witness cannot consult with lawyer after each question).
Given that witnesses are almost powerless before the grand jury, it does not seem unreasonable to expect prosecutors to avoid interfering with their limited right to consult with their attorneys outside the grand jury room. Unfortunately, as the sordid facts of the recent civil rights suit Gabbert v. Conn, 131 F.3d 793 (9th Cir. 1997), indicate, that is not always the case.
Paul Gabbert, a well-respected Los Angeles lawyer and nationally recognized expert on forfeiture, represented Traci Baker, one of the defense witnesses at the first murder trial of Lyle and Erik Menendez. After the first trial of the Menendez brothers ended in a hung jury, Los Angeles County Deputy District Attorneys David Conn and Carol Najera, who were assigned to the retrial, received information that Lyle Menendez had sent Baker a letter in which he asked her to testify falsely. Id. at 797.
After learning about the alleged letter, Conn obtained a subpoena ordering Baker to testify before a grand jury and to produce any correspondence between her and Lyle. Leslie Zoeller, a detective with the Beverly Hills Police Department and the lead investigator, served the subpoena on Baker at Gabbert's upscale Santa Monica law office. Id.
The next day, while Gabbert was filing a motion to quash the subpoena in Los Angeles Superior Court, Conn, Najera, and Detective Zoeller obtained a search warrant to search Baker's residence for any correspondence from Lyle Menendez. When confronted with the warrant, Baker told Detective Zoeller that she had given all of the subpoenaed documents to her lawyer, Gabbert. Detective Zoeller informed Conn and Najera of that statement. Id.
Three days later, Gabbert went with Baker to her scheduled grand jury appearance. As they were entering the courthouse, Deputy D.A. Conn approached Gabbert and asked if he had brought the "documents" with him. Although Conn was actually referring to Lyle Menendez's correspondence, Gabbert thought Conn was referring to the documents he had filed with his motion to quash, and told Conn that he didn't have the documents. Id. at 798.
Apparently oblivious to the fact that the prosecution could obtain the documents by serving Gabbert with a subpoena -- a fact noted by Judge Weiner during the subsequent oral argument on appeal -- Conn then directed Detective Zoeller to obtain a warrant to search Gabbert. Zoeller obtained the warrant, and pursuant to California's "Special Master" statute, Cal. Penal Code 1524, Elliot Oppenheim, a retired lawyer in his 80s, was given authority to search Gabbert and his effects, as well as the responsibility for protecting the confidentiality of any material protected by the attorney-client privilege that might be compromised by the search. Id. (In the author's experience, many Special Masters are close to Oppenheim's age. One wonders if the legislature really intended to require Special Masters to have at least 45 or 50 years of legal experience prior to serving in that capacity; the author, who helped draft the Special Master statute, doesn't think so.)
At Conn's direction, Detective Zoeller served the search warrant on Gabbert as the lawyer and the client waited for her to be called to testify before the grand jury. The search took place in a small room adjacent to the grand jury room, at Gabbert's request. Before he was actually searched, Gabbert gave Oppenheim two pages of a three-page letter from Lyle Menendez to Baker, and told Oppenheim that the letter was the only document in his possession that was covered by the warrant. Nevertheless, Oppenheim proceeded to search Gabbert's files, including two files involving clients other than Traci Baker and Lyle Menendez. Gabbert protested, invoking the attorney-client privilege. Oppenheim, however, reviewed the files anyway -- as well as the contents of Gabbert's briefcase, calendar, wallet, dictaphone, eyeglass case, and notepad -- despite the fact that the Special Master statute specifically requires the Special Master to seal documents asserted to be covered by the attorney-client privilege and take them to a judge for a ruling on the privilege. Cal. Penal Code 1524(c). It is difficult to imagine what Oppenheim expected to discover in some of those items, or why he ignored the express statutory directives.
As the search warrant was being executed, Najera -- also acting at Conn's direction -- called Baker to testify before the grand jury. In response to Najera's first question, Baker asked to leave the grand jury room to consult with Gabbert. Id.
Conn's secretary went to the room in which Gabbert was being searched and informed him that Baker wanted to speak to him. Gabbert told the secretary that he could not leave and that Najera would simply have to delay questioning Baker until the search was completed. Id.
Baker, unknown to Gabbert, was waiting for him right outside the search room, returned to the grand jury room and began reading off a card that she had prepared, invoking her Fifth Amendment privilege against self-incrimination "on the advice of counsel." When Najera asked her a second question, Baker again asked to see Gabbert and again left the room. Unable to find Gabbert, Baker was ultimately ordered by a bailiff to return to the grand jury room. She did, and again asserted her Fifth Amendment privilege. Id.
Conn then moved to hold Baker in contempt for failing to produce the subpoenaed documents. Conn, Najera, and Detective Zoeller took Baker to the search room, where Oppenheim informed them that Gabbert, represented by Tulcott, Lightfoot, Vandevekle and Sadowsky did not have the materials sought by the warrant, but that Gabbert's effects did not contain privileged documents -- a claim Gabbert hotly disputed. Conn then ordered Detective Zoeller to conduct a "follow up" search of Gabbert while he and Najera watched the degrading spectacle. Oppenheim did not participate in the second search. The search uncovered nothing of use to the prosecutors. Id.
Following the events surrounding Baker's grand jury appearance, Gabbert filed a Section 1983 action against Conn, Najera, Detective Zoeller, and Oppenheim alleging that they unlawfully deprived him of his Fourteenth Amendment right to practice his profession without undue and unreasonable interference, see, e.g., Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56, 65 n.4 (9th Cir. 1994) ("Pursuit of an occupation or profession is a protected liberty interest. Such a right is both a liberty and property right protected from state deprivation or undue interference."), as well as his Fourth Amendment right to be free of unreasonable searches and seizures. Surprisingly, the district court did not seem to be troubled by the prosecutors' abuse of their discretion, and granted summary judgment in favor of all defendants. The Ninth Circuit, however, was deeply concerned by what had occurred, and reversed on various claims involving Conn, Najera, and Detective Zoeller.
The Ninth Circuit's opinion, written by Judge Hawkins, explicitly rejected the state's attempt to defend the legality of its actions. Noting that a grand jury witness's "clearly established right to assistance . . . cannot be exercised if government officials unnecessarily interfere with an attorney's ability to provide that advice," Gabbert, 131 F.3d at 810, the court concluded that the prosecutors, Conn (who, ironically, is now a criminal-defense lawyer practicing with a large "respectable" Los Angeles law firm) and Najera, had done precisely that:
Here, two streams of events collided. The prosecutors were poised with a search warrant for Gabbert's effects to be carried out by a special master pursuant to California procedure. Baker, as required by her grand jury subpoena, was present and prepared to appear before the grand jury. The prosecutors were in control of both events: they controlled the timing of the execution of the search warrant on Gabbert and his client's grand jury appearance. The only apparent reason to have both occur at the same time was the prosecutors' desire to prevent Gabbert from communicating with his client.
Id. at 802.
The court also noted that Detective Zoeller's "follow-up"search of Gabbert's effects was authorized neither by the California Special Master statute or the search warrant itself, and was thus a warrantless search.
Although the tone of the opinion is relatively measured, after Micheal Lightfoot argued Gabbert's position, the panel skewered the defendants' lawyers during their oral argument. Clearly incensed by what had taken place, the panel continually attempted to elicit from the defendant's lawyers any plausible reason, other than a desire to keep Gabbert from consulting with Baker, for not delaying the search until after Baker finished testifying. Unfortunately for the defendants, the panel never got a satisfactory answer. The following exchange between the panel and the lawyer representing Detective Zoeller and Special Master Oppenheim is illustrative:
Judge Pregerson: I mean, there's no reason in the world why they couldn't have delayed the search. Unless they wanted to create a problem between the witness -- the client -- and the attorney. What reason could there be? Think of one.
MacLatchie: I don't know, Your Honor. Standing . . .
Judge Pregerson: We'll give you an hour to think of one and come back while we deal with these other cases.
MacLatchie: Your Honor, I . . . I would . . . I cannot . . .
Judge Pregerson: One plausible reason.
Eventually, Conn and Najera's attorney, Stephen Rennick, did answer Judge Pregerson's question. His answer, however, increased the panel's concern.
Judge Hawkins: We still have this question that's screaming out to be answered that neither of you have answered. Why couldn't they have delayed the grand jury appearance?
Rennick: Because they chose not to.
Judge Hawkins: Okay.
Actually, not okay. Judge Hawkins, like the rest of the panel, explicitly rejected Rennick's argument that intentionally isolating Baker from Gabbert during her grand jury testimony was nothing more than a legitimate prosecutorial technique for getting Baker to testify truthfully.
Rennick: Maybe that's the exact purpose. That the whole purpose of having her come to testify is to encourager her to reveal the information they are looking for.
Judge Hawkins:To encourage her to incriminate herself?
Rennick: I honestly don't think that the DA's really had much of an interest in Ms. Baker as a criminal target. They wanted . . . .
Judge Hawkins: They told her she was the target of a perjury investigation.
Rennick: Again, the, and what was, if, if we think like a prosecutor, what is more likely to make a person . . .
Judge Hawkins:I used to be a prosecutor. [Judge Hawkins was once the United States Attorney for the District of Arizona.]
Rennick: I'm aware, Your Honor.
Judge Hawkins: I know how to think like one.
Rennick: I apol . . . .
Judge Hawkins: I would have fired an assistant that did anything like this . . . summarily.
The panel was also less than impressed by Rennick's conception of how an ethical and concerned defense attorney represents clients. On more than one occasion, Rennick unsuccessfully tried to argue that the prosecutors did not prevent Gabbert from consulting with Baker, because it was Gabbert, not the prosecutors, who suggested conducting the search in a private room away from the grand jury.
Rennick: What the District Attorney's did here, at most, was have Mr. Gabbert served with a search warrant in front of his client when he was still accessible. Mr. Gabbert himself moved out of convenient location to his client . . . .
Judge Weiner: Would you have stood there if you were Mr. Gabbert and have yourself searched in front of your client?
Rennick: If I believed that my client was so nervous that she needed me there, yes, I would have stripped down to my skivvies.
Judge Weiner: While searching you...
Rennick: I would have asked the nice 80-year-old gentleman to step aside for a moment and let me talk to my client.
Judge Weiner: You think he would have done that.
Rennick: Absolutely.
Judge Hawkins: The Special Master who volunteers to do this kind of work but quite obviously has never read the statute.
All in all, it was a bad day for the defendants and their lawyers. And rightfully so: as Judge Hawkins put it, "If you described what happened in this case to a stranger and didn't tell them what country it had happened in, America is not the first place that would come to mind." If all judges held prosecutors to such high ethical standards, the infamous Hall of Shame would have a severe shortage of potential candidates. Until then, however, the Hall lives on, complete with new inductees who pass the exceedingly low threshold for admissibility.
Ninth Circuit Holds Absence of Prior Bad Acts
Admissible To Show Entrapment
There are two elements to the defense of entrapment: (1) inducement by a government agent to commit a crime; and (2) lack of predisposition to commit that crime. United States v. Barry, 814 F.2d 1400, 1401 (9th Cir. 1987). "[W]here the Government has induced an individual to break the law and the defense of entrapment is at issue . . . the prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to being approached by Government agents." Jacobson v. United States, 503 U.S. 540, 548-49 (1992).
In many, if not most, cases involving an entrapment defense, prosecutors use prior bad acts to prove that the defendant was predisposed to commit the charged crime. See Paul Marcus, The Entrapment Defense 4.17, at 148. Usually, such evidence is admitted under Federal Rule of Evidence 404(b), which provides that "[e]vidence of other crimes, wrongs or acts" may be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Indeed, a number of courts have explicitly held that prior bad acts are admissible under Rule 404(b) to prove predisposition. See, e.g., United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985) (holding that proof of prior bad acts satisfying Rule 404(b) "is a reliable method of proving the criminal disposition needed to rebut the allegation or inference of entrapment"); Barry, 814 F.2d at 1404 n.6; United States v. Burkley, 591 F.2d 903, 921 (D.C. Cir. 1978); see generally RICO Report, The Champion (Sept./Oct. 1997) (discussing various circuit positions on whether proof of disposition requires proof of positional readiness as well).
If Rule 404(b) allows prosecutors to use prior bad acts to prove that a defendant was predisposed to commit the charged crime, shouldn't Rule 404(b) allow a defendant to use the absence of prior bad acts to prove that he was not predisposed to commit the charged crime? Resolving what was apparently a question of first impression, the Ninth Circuit recently said "yes." United States v. Thomas, 134 F.2d 975 (9th Cir. 1998).
Cristobal Crosthwaite-Villa, a friend of Thomas', owned a car that was seized by U.S. immigration officials in 1992 as he was trying to illegally enter the U.S. from Mexico. While waiting to reclaim the car, Crosthwaite ran into a childhood friend, Albert Barruetta, who was a professional informer for the DEA. Barruetta told Crosthwaite that, for $1000, he could get Crosthwaite his car back and obtain a permit that would allow him to live in the United States.
Crosthwaite contacted Barruetta almost daily over the next month. During those conversations, Barruetta learned that Crosthwaite was an occasional drug user. Barruetta then informed DEA Agent Bruce Goldberg -- without factual basis -- that Crosthwaite was a drug dealer who regularly distributed "multi-pounds" of methamphetamine. Agent Goldberg formally enlisted Barruetta as a confidential informer, and agreed to pay him a contingency fee based upon the success of a sting operation. Barruetta then asked Crosthwaite to find someone who could sell him methamphetamine.
Eventually, Crosthwaite contacted Thomas, from whom he had purchased a single $20 dose of methamphetamine on a couple of occasions. According to Thomas' testimony, Crosthwaite told Thomas that he would get his car back and obtain the immigration papers in exchange for Thomas setting up a methamphetamine deal. Thomas testified that he refused Crosthwaite's offer, and continued to refuse the offer despite Crosthwaite's numerous attempts to persuade him to change his mind.
Ultimately, however, Thomas gave in and Crosthwaite arranged for Barruetta to purchase three pounds of methamphetamine from Thomas. The DEA arrested Thomas when the transaction occurred.
At trial, Thomas argued that he was entrapped by Barruetta, because he was not a drug dealer and was not predisposed to engage in the drug transaction for which he was arrested. (Note that it is unclear from the opinion why Thomas was able to raise an entrapment defense at all; Crosthwaite, the only person with whom Thomas had contact, had no knowledge of Barruetta's sting operation, and the Ninth Circuit only recognizes derivative entrapment when the government acts through a knowing agent. See United States v. Emmert, 829 F.2d 805, 809 (9th Cir. 1987) (rejecting "unwitting agent" theory of derivative entrapment); but cf. United States v. Jones, 839 F.2d 1041, 1054 (5th Cir. 1988) ("[T]he government may entrap a defendant through the actions of an 'ignorant pawn.'"); see generally RICO Report (July 1997) (discussing various circuit positions on derivative entrapment).)
In support of his entrapment defense, Thomas attempted to present testimony concerning his lack of a criminal or arrest record as evidence of his lack of predisposition to sell such a large amount of methamphetamine. The district court, however, refused to admit the testimony, and Thomas was convicted.
On appeal, a divided Ninth Circuit panel reversed, holding that "evidence of prior good acts is admissible under Rule 404(b) to prove the defendant's intent or state of mind as long as it 'bears meaningfully on the defendant's lack of a criminal disposition at the time of the government's inducement.'" Thomas, 134 F.2d at 979 (quoting Barry, 814 F.2d at 1403 n.6). According to the court,
[t]he proffered evidence was important to Thomas' effort to counter the prejudicial effect of the government's evidence that he has sold a couple of doses of methamphetamine to Crosthwaite. In the absence of evidence of Thomas' clean record, it is reasonably likely that a jury would given significant weight to the government's evidence of the earlier $20 sales, even though that evidence was relatively weak and insubstantial as to the question of Thomas' predisposition to engage in multiple-pound methamphetamine deals.
Id. at 980.
The court also held that even if Thomas' evidence was not admissible under Rule 404(b), it would still be admissible under Rule 405(b), which provides that "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct." The panel noted that "[f]or the jury to find predisposition beyond a reasonable doubt, it must consider the defendant's character." Id.
As a result, the court held, character is an essential element of the entrapment defense, and specific instances of conduct - or the absence of such instances - are admissible in an entrapment case to show the defendant's lack of predisposition to commit the crime charged. Id.
Judge Skopil dissented from the majority position in Thomas. In his view, "testimony that one has never been arrested is especially weak character evidence; a clever criminal, after all, may never get caught." Id. at 981 (quoting Government of Virgin Islands v. Grant, 775 F.2d 508, 512 (3rd Cir. 1985)). Judge Skopil's observation, however, goes only to the weight the jury should give to evidence that the defendant does not have a record of prior bad acts; it does not affect its admissibility. As the majority correctly recognized, it is neither fair nor in keeping with the text of Rules 404(b) and 405(b) to say that the prosecution can use a defendant's prior bad acts to show predisposition but the defendant cannot use the absence of prior bad acts to show lack of predisposition.
Secret Wiretaps Exposed
Somehow, the police seem to be in the right place at the right time. A police car pulls up to a house, and soon a van containing cocaine arrives, ready to be intercepted. An officer on foot patrol happens to stroll by a business just as a major drug transaction is taking place. A state trooper stops "for speeding" an ordinary-looking car with an ordinary-looking passenger. It turns out there is a large amount of drugs hidden in the trunk.
What do such fortunate "coincidences" mean? That the police are very good at what they do? That they are very lucky? That they employ a cadre of particularly effective psychics?
A series of cases in Southern California suggests another possible answer: that the police are systematically concealing the fact that much of the information they use to identify criminal activity in certain cases is derived from secret lawful or unlawful wiretaps. The police probably never intended to disclose the existence of these taps or to directly use the recorded conversations in court. The information has apparently only been used to intercept contraband, to arrest defendants, and for intelligence purposes. (People v. Gastelum, No. 132597; People v. Juarez, No. 132549; People v. Garcia, No. 132514.)
These California cases have a national impact, for several reasons. To begin with, the information obtained through the secret wiretaps is not only transmitted within the borders of California; it is also used to instigate investigations and detentions along highways, at airports, and in cities throughout the country. In addition, there is no reason to believe that the modus operandi of law enforcement in California is not being used by investigators in other states that permit wiretapping by statute.
At issue in the three California cases -- only one of which, Gastelum, is still ongoing -- is the legality of a number of arrests and drug seizures that took place on May 22 and 23, 1996. On May 22, the Los Ageles Police Department (LAPD) arrested Francisco Alejandro Juarez, Rigoberto Lopez Felix, and Bernardo Perez Perez and seized approximately 16 kilos of cocaine. On the same day, the LAPD arrested Jorge Silva Garcia and James Rico Barto and seized approximately 3 kilos of cocaine. And on May 23, the LAPD arrested the defendants in Gastelum, Antonio Rocha Gastelum, Carlos Inzuna Lobo, and Lauro Rocho Gaxiola, and seized approximately 190 kilos of cocaine.
The relevant police reports all indicate that the arrests and seizures resulted from lawful surveillance of the various persons and places involved. As it turns out, however, that is only part of the story. What the police reports conveniently fail to mention is that the LAPD's ostensibly lawful surveillance was itself the result of information obtained through a concealed wiretap -- a wiretap the LAPD used to intercept literally hundreds of telephone and cellular telephone calls involving the defendants in Juarez, Garcia, and Gastelum.
Such wiretapping is permitted by the California Wiretap Statute, Cal. Penal Code 629, enacted in 1995. Section 629, which has been discussed in only one published opinion, see People v. Chavez, 44 Cal. App. 4th 1144 (1996), permits California law-enforcement officials to apply in writing to a judge for an ex parte oral or written order authorizing the interception of "a wire, electronic digital pager, or electronic cellular telephone communication." (Cal. Penal Code 629.50 - 629.56.) The statute, however, prohibits law-enforcement from using the wiretap "for any period longer than is necessary to achieve the objective of the authorization, nor in any event for longer than 30 days," Cal. Penal Code 629.58, and requires law-enforcement to submit oral or written reports to the authorizing judge at least once every 72 hours. Cal. Penal Code 629.60.
The process the LAPD normally used to conceal the true source of the information that led to its "lawful" surveillance and arrest of the defendants in Juarez, Garcia, and Gastelum is both simple and deceptive. Reduced to its essentials, the process involves five steps:
[1] Detective 1 learns the details of a proposed drug transactions through a wiretap.
[2] Detective 1 gives that information to Detective 2, informing Detective 2 of the wiretap.
[3] Detective 2 conducts an initial investigation in accordance with the wiretap information provided by Detective 1 to ensure that the information is correct.
[4] Detective 2 "hands off" the investigation to Detective 3, instructing Detective 3 to conduct an investigation at the relevant location but not disclosing the existence of the wiretap.
[5] Detective 3 conducts the narcotics investigation as instructed, resulting -- not surprisingly -- in an arrest and seizure.
It is impossible to know with any accuracy, how widespread this practice is. One of the LAPD detectives involved in Gastelum admitted that he had been personally involved in "dozens" of cases involving concealed wiretaps. Clearly, there is no reason to believe that the LAPD has a monopoly on the use of concealed wiretaps, given their evident utility as a law enforcement tool. It thus seems reasonable to assume that concealed wiretaps are used by police departments throughout the country, in what must be literally hundreds of cases.
One major problem in assessing the use of concealed wiretaps is how rarely, if ever, their existence comes to light. Criminal defendants in California almost always request discovery of statements they have made that are in the prosecution's possession, a request that would necessarily include statements that the police have obtained through a wiretap. The prosecutor can only disclose wiretap statements, however, if he or she knows that such statements exist. For most concealed wiretaps, that will not be the case. Since the police do not intend to use the statements against the defendants, the police may not inform the prosecutor that they exist or that they have been using an illegal wiretap to record the defendant's statements -- after all, protecting the secrecy of the wiretap is the specific purpose of the "hand off" procedure described above.
The prosecutor, therefore, will often be oblivious to the existence of the wiretap, to any statements intercepted by the wiretap, and to even why the surveillance of the defendant originated. This lack of knowledge also frustrates California defense lawyers' specific attempts to discover wiretap applications and affidavits. Such discovery requests have been invariably disparaged by prosecutors, who claim that their cases do not involve wiretapping, and busy superior court judges simply ignore such requests after hearing the prosecutors' responses.
The defendants in Juarez and Garcia were prosecuted before they learned that they had been originally targeted for investigation on the basis of information obtained through an illegal wiretap. The defendants in Gastelum, by contrast, were more fortunate: by an odd coincidence, the deputy district attorney responsible for their prosecution was the same deputy district attorney who originally obtained the secret wiretap. Moreover, because he had originally obtained the wiretap, that D.A. was aware of over 700 transcribed pages of communications between the defendants in his files. As a result, when the defendants requested discovery of their statements, the prosecutor in Gastelum was faced with an intractable dilemma: he could not honestly maintain that he was unaware of any statements of the defendants, but he also could not produce those statements without revealing the existence of the concealed wiretap.
The prosecutor initially attempted to resolve this dilemma by trying to convince Judge Gregory Alarcon, a new Superior Court Judge in Los Angeles, during a series of in camera hearings, that he was not, in fact, obligated under California law to produce the defendants' wiretap statements in response to their discovery request. First, he argued that Cal. Penal Code 1054.1, which provides that "[t]he prosecuting attorney shall disclose to the defendant or his or her attorney all . . . [s]tatements of all defendants," does not require disclosure of inculpatory statements that the prosecution does not intend to use at trial. Quite rightly, Judge Alarcon rejected that argument:
I understand your position. I think it's a fundamental misreading of 1054, but I do understand your position. . . . As the court sees it, you have got the obligation to turn over written statements of the defendant. You don't have the luxury of going through them and deciding which ones will help and then giving those over and deciding which ones won't help and then keeping those for your arsenal or keeping them for whatever reason.
The prosecutor then attempted to argue that the existence of the wiretap was protected by the privilege for official information, Cal. Evid. Code 1040, much like the existence of a confidential informer is protected by that privilege, Cal. Evid. Code 1041. Again, Judge Alarcon was not impressed; in his view, even if the official-information privilege could in theory be extended to statements made by a defendant intercepted by a wiretap -- which he doubted -- the privilege would still have to "give way to the due process rights of the defendants to have the statements that they are entitled to for trial."
Having rejected both of the prosecutor's arguments, Judge Alarcon ordered him to produce the defendants' statements. He did, however, grant the prosecutor's motion to seal the application and affidavit required for a court-ordered wiretap by Section 629.50, concluding that "there's nothing in this that is material to the guilt or innocence of the defendants in this case . . . [and] that a privilege for official information would far overtake any right of the defendants."
After they learned of the concealed wiretap in June 1997, and investigated the manner and circumstances in which it had been used, Philip DeMassa and Roger Rosen, lawyers for Gaxiola and Gastelum, respectively, brought a $10 million civil rights action under 18 U.S.C. 1983 against the LAPD officers involved in the wiretap, the Chief of the LAPD, and the City of Los Angeles. The action alleges numerous constitutional violations resulting from the LAPD's use of the wiretap to unlawfully intercept Gaxiola and Gastelum's voice communications and its subsequent concealment of the wiretap itself. Count One, brought against all defendants, alleges that the defendants' actions violated Gaxiola and Gastelum's Fourth Amendment right to be free of unreasonable searches and seizures; their Fifth Amendment right to due process; their Sixth Amendment right to counsel; and their general constitutional right under Brady to receive all exculpatory information in the possession of the prosecution.
Count Two, brought against Chief Williams and the City of Los Angeles, alleges that the constitutional deprivations alleged in Count One resulted from LAPD policies, customs, practices, and usages "that are so pervasive that they constitute the policy of the department" -- an allegation that seems justified, given that one of the detectives involved in Gastelum testified that the "hand off" procedure was "something that I've been taught and told by other members of other police agencies . . . as well as our own."
Count Three, brought against all defendants, alleges that the defendants' actions resulted in Gaxiola and Gastelum's illegal seizure, detention, and arrest.
It remains to be seen whether DeMassa and Rosen's Section 1983 action will succeed; the action has been stayed pending the outcome of Gaxiola and Gastelum's criminal case. The critical issue in the criminal case will no doubt be whether the cocaine seized by the LAPD as a result of the investigation and subsequent "hand off" should be suppressed as "fruit of the poisonous tree," since the prosecutor conceded for purpose of the criminal case that "the wiretap order was invalid" to avoid having to disclose and litigate the validity of the underlying application and affidavit. Neither the prosecutor nor the LAPD seems to think the drugs should be suppressed. The prosecutor believes that the concealment of the wiretap has no legal implications at all for the criminal case, because the intercepted statements are all (according to the prosecutor) inculpatory and because he does not intend to use any of those statements at trial.
The LAPD's position is even more curious. According to the LAPD, it is legally irrelevant that Detective Hodges began the drug investigation at issue in Gastelum only because Detective Harden told him, on the basis of information obtained through the concealed wiretap, to do so; in its view, the arrests and seizure were valid as long as Detective Hodges developed "independent probable cause" to believe the defendants were engaged in drug trafficking once he began the narcotics investigation.
Vigorous examination of the detectives during the extensive evidentiary hearings over a period of several months and diligent pursuit of the truth by DeMassa and Rosen, however, have exposed much of the secret LAPD scheme. Consider the following exchange between DeMassa and Detective Harden:
So the purpose in doing the hand-off was to avoid exposing the wiretap, correct?
So they could proceed in an independent manner in getting their own independent probable cause.
***
Is the hand-off procedure utilized by you in this case a prophylactic method to protect the wiretap?
It was my understanding that the independent evidence that they used and attained on their own did not connect up to the wiretap. . . . My understanding is that legally it could be done in that manner.
As Phil DeMassa and Roger Rosen have persuasively argued, just because the prosecutor and the LAPD believe that their position is correct, however, does not make it so. To begin with, this argument is based on an inaccurate factual assumption: that Detective Hodges was genuinely unaware of the fact that his drug investigation was based on information obtained through a wiretap. As his testimony indicates, that was not the case:
Who told you there had been a wiretap?
I don't really think anybody specifically came up and told me that this was a wiretap.
Well, how did you learn?
***
[I was told] something like this was handed off from Dan Harden's squad.
***
You took the words "this was handed off from Dan Harden's squad" to mean a wiretap, didn't you?
I wasn't completely sure it was a wiretap, but I suspected that it was.
Did you do anything to confirm or assuage your suspicions?
No.
The prosecutor's and the LAPD's positions regarding Detective Hodges' knowledge are also undermined by the fact that the detective testified that he has worked both sides of the fence in concealed wiretap cases -- sometimes handing a case off, other times being handed a case -- and thus could hardly have been unaware of the source of his investigation:
Some of these dozens of cases I mentioned, I actually received the information and was the acting supervisor and passed that information on to other detectives. I did not advise those other detectives that there was a wiretap. I advised them to conduct a narcotics investigation at a location.
In the cases that I was the case agent involved in the investigation, I received the information from either Horacio Marco or another agent from another police department to start a narcotics investigation, and no mention of a wiretap or a wiretap led to here, never until after we concluded our investigation.
Moreover, even if Detective Hodges didn't actually know of the wiretap, the cocaine seized during his investigation would still have to be suppressed as the fruit of the poisonous tree. In the Ninth Circuit, "the test [is] whether the illegal activity tends to significantly direct the investigation to the evidence in question." United States v. Johns, 891 F.2d 243, 245 (9th Cir. 1989). That test is clearly satisfied here: regardless of what Detective Hodges knew or did not know, it is undeniable that the drug investigation was "significantly directed" by the illegal wiretap -- after all, Detective Hodges only conducted the investigation because he was specifically instructed to do so by Detective Hodges, and Detective Hodges only instructed Detective Harden to conduct the investigation because he knew, as a result of the wiretap, that a major drug transaction was about to occur. Simply put, without the wiretap, Detective Hodges' investigation would never have taken place, the 190 kilos of cocaine would not have been seized, and the defendants in Gastelum would not have been arrested.
Moreover, a number of courts have specifically held that evidence obtained through an investigation that itself resulted from an illegal wiretap must be suppressed as the fruit of the poisonous tree. See United States v. Tane, 329 F.2d 848, 853 (2d Cir. 1964) (suppressing grand jury testimony of witness, because the witness' identity was derived from an illegal wiretap); United States v. Coplon, 185 F.2d 629, 639 (2d Cir. 1950) (suppressing evidence found as a result of a tax investigation; "[t]he prosecution conceded that the Bureau had been set upon the trail by what it described as a confidential informant; and the testimony showed that this was a frequent euphemism for 'wiretapper'"); United States v. Schipani, 289 F. Supp. 43, 63 (E.D.N.Y. 1968) ("In the present case, if, as a result of the electronic eavesdropping, the government overheard Schipani say 'I robbed the X bank,' and then sought to prosecute him for that bank robbery after an investigation touched off by this remark, it is doubtful if the government could successfully withstand a motion to dismiss the indictment.").
Cases such as these demonstrate that DeMassa and Rosen should eventually be able to suppress the cocaine at issue in Gastelum. Regardless of the result in the criminal and civil cases, Gastelum should serve as an important wake-up call for defense attorneys throughout the nation. Concealed wiretaps are, without question, an extremely powerful tool for police and prosecutors determined to avoid the Fourth Amendment. It is apparent that what has been disclosed to date in Gastelum is probably just the tip of the iceberg.
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