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August 1999 RICO Report By Barry Tarlow 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 Shereen Charlick, a member of his firm, for her invaluable assistance in the preparation of this column. Proffer Evidence to the Prosecution? Only If Your Client Plans To Plead Guilty The Seventh Circuit’s recent decision in United States v. Krilich, 159 F.3d 1020 (7th Cir. 1998), provides a chilling illustration of the danger of negotiating a “cooperation” agreement with the prosecution. In Krilich, the court of appeals interpreted a cooperation agreement which contained a theoretically limited waiver of the inadmissibility of plea negotiation statements in an overbroad and unanticipated manner. The court found that defendant Robert Krilich waived the protections of the Federal Rules of Criminal Procedure 11(e)(6), providing for the inadmissibility of plea negotiation statements, simply by virtue of his lawyer’s cross-examination of a witness where the cross-examination was designed to cast doubt upon the government’s case. The case against Krilich involved allegations dating as far back as 1984 when he obtained Industrial Revenue Bond financing in connection with three real estate projects in Oakbrook Terrace, Illinois. The 15-count indictment charged him with bank fraud in connection with these transactions as well as a RICO conspiracy alleging five overt acts of bribery. Two of the five overt acts involve statements Krilich made in a pre-indictment proffer to the prosecution. First, Krilich was accused of rigging a hole-in-one contest at the Country Lakes Country Club in Oakbrook so that the town mayor’s son would win. Krilich was alleged, (and apparently admitted a good portion of this in his proffer), to have been present at the ninth hole where he reached into the hole and pulled out a golf ball which he had palmed earlier, enabling the mayor’s son to win $40,000, courtesy of the National Hole-in-One Association. Krilich, 159 F.2d at 1024; Defendant’s Petition for Certiorari (“Cert. Pet.”) at 4-6. According to the government, this scheme was concocted to provide a highly unusual yet innovative method of paying off a bribe to the mayor. Krilich was also charged with bribing the mayor, on another occasion, in the amount of $5000, to obtain favorable rezoning. Cert. Pet. at 4-6. Prior to the filing of any criminal charges, Krilich retained attorney Jeffrey Steinback, an experienced criminal defense lawyer, in an effort to negotiate a resolution of his own as well as his son’s unrelated criminal liability. Cert. Pet. at 6; Amicus Brief at 9-10. Apparently, in the Seventh Circuit, pre-indictment negotiations go nowhere unless a defendant agrees to give a proffer. Therefore, Krilich, pursuant to the advice of counsel, submitted a written proffer to prosecutors and signed an agreement which contained the following language: [S]hould Krilich subsequently testify contrary to the substance of the proffer or otherwise present a position inconsistent with the proffer, nothing shall prevent the government from using the substance of the proffer at sentencing for any purpose, at trial for impeachment or in rebuttal testimony, or in a prosecution for perjury. Somewhere along the way, plea negotiations broke down and Krilich ended up charged with violating RICO and bank fraud laws in a 15-count indictment. He proceeded to trial where his attorney, through cross-examination, elicited admissions from several government witnesses that they did not see Krilich near the ninth hole and that the ninth hole is near the Country Club’s clubhouse, permitting the inference that many people could and should conceivably have observed what the prosecution alleged that Krilich had done. Regarding the zoning bribe accusation, Krilich’s attorney elicited truthful testimony from the town’s city attorney that the city attorney, in fact, believed that the rezoning was appropriate, and that the procedures for altering the zoning were routine. Cert. Pet. at 6. Krilich called one defense witness, his company’s vice president, who testified, again truthfully, that he was unaware of any of these bribes. Cert. Pet. at 6-7. Even though armed with the ability to redirect his own witnesses, the prosecutor apparently lacked the skill to combat defense counsel’s cross-examination. Instead, he opted to introduce Krilich’s proffer statements, claiming that Krilich had “advanc[ed] a position inconsistent with the proffer.” See Cert. Pet. at 7; Krilich, 159 F.3d at 1026. The district court permitted its introduction. After hearing the proffer, the jury convicted Krilich in short order. He was sentenced to 64 months imprisonment along with a verdict forfeiting millions of dollars. Cert. Pet. at 7. On appeal, Krilich’s impressive array of attorneys, including Thomas Decker, both Lawrence Marshall and Dennis Berkson of Northwestern’s Legal Clinic along with Marc Martin, Herbert Miller, Nathan Lewin, Stephen Braga, and Paul Enzinna of Miller, Cassidy, Larroca & Lewin, attempted to remedy the district court’s unexpected decision. On appeal, the operative legal considerations should have been the federal rules governing plea negotiations along with principles regarding interpretation of written agreements. Plea negotiations are expressly governed by the federal rules. See Fed. R. Evid. 410; Fed. R. Crim. P. 11(e)(6). Federal Rule of Criminal Procedure 11(e)(6), specifically states in relevant part, that “except as otherwise provided,” evidence of a defendant’s statement made in the course of plea discussions with an attorney for the government” is not admissible against the defendant. The “except as otherwise provided” language is also explained in Rule 11(e)(6) which permits introduction either under a “rule of completeness” rationale — where another statement made in the course of these plea negotiations was introduced so that the remainder of the statement “ought in fairness to be considered” or in a criminal perjury or false statement proceeding if the statement was made under oath, in court and in the presence of counsel. Fed. R. Crim. P. 11(e)(6). See also Fed. R. Evid. 410 (mirroring Rule 11(e)(6)). In fact, absent a waiver, as was present here, a defendant’s plea negotiation statements are inadmissible at his subsequent trial, even if he testifies contrary to them. See id; United States v. Crowell, 60 F. 3d 199, 206 (5th Cir. 1995). In 1995, the Supreme Court resolved the issue of the “waivability” of Rule 11(e)(6) and Federal Rule of Evidence 410, holding that “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement Rules is valid and enforceable.” United States v. Mezzanatto, 513 U.S. 196, 210 (1995). However, the court was quite clear that this meant that “prosecutors may condition cooperation discussions on an agreement that the testimony provided may be used for impeachment purposes.” Id. at 207 (emphasis added); but see United States v. Burch, 156 F.3d 1315 (D.C. Cir. 1998) (upholding a defendant’s blanket waiver of inadmissibility of plea statements and permitting introduction of plea admissions in government’s case-in-chief). In Mezzanatto the defendant, who executed such a waiver, then took the stand at trial and presented testimony diametrically opposed to his proffer statements. Id. In Krilich, the Seventh Circuit skipped over the provisions of the federal rules and moved directly to the principles enunciated in Mezzanatto, permitting waiver of the inadmissibility of statements made during plea negotiations. It did not bother to discuss the factual underpinnings of Mezzanatto, or contrast them with the distinct conduct which occurred in Krilich. Krilich, 159 F.3d at 1024. In fact, in its rush to validate the district court’s admission of Krilich’s proffer, the court of appeals failed to address or acknowledge that simply because, under some circumstances, the law permits waiver of Rule 11(e)(6)’s provisions, this does not lead automatically to the conclusion that it occurred here. Waiver of the protections of the Federal Rules of Criminal Procedure is not provided for by the Federal Rules or any other statutes. This “waiver” is set forth in the cooperation agreement — which has contractual origins. Therefore, contract principles apply as opposed to ordinary statutory analysis. In this particular “contract,” what constituted “otherwise presenting a position inconsistent with the proffer,” was at issue. The remainder of the agreement does not further define this provision and it was clear that ordinary “custom and usage” defined it in a manner which would not have permitted its introduction in this case. Though Krilich never addressed this point, prevailing law provides that agreements between defendants and the prosecution, whether they be plea agreements, or as here, “cooperation agreements” are governed by contract law principles. United States v. Carrillo, 709 F.2d 35, 36 (9th Cir. 1983); United States v. Yemitan, 70 F.3d 746, 47 (2d Cir. 1995); United States v. Gerace, 997 F.2d 1293, 1294 (9th Cir. 1993) (plea agreement governed by contract principles). At least, until this case, it was well-established that when interpreting plea agreements, their terms are construed against the drafter, who bears responsibility for any “lack of clarity” in the agreement. United States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992); see also, Wilbur v. Toyota Motor Sales, U.S.A., Inc., 86 F.3d 23, 27 (2d Cir. 1996) (where there is a contractual ambiguity, it will be construed against the drafter). In other words, plea agreements “must be interpreted strictly against the government.” United States v. Ready, 82 F.3d 551, 558-59 (2d Cir. 1996); Contract law principles determine whether or not there is an ambiguity, which is defined as a word or phrase “capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire . . . agreement and who is cognizant of the customs, practices, usages . . . generally understood in the particular trade or business.” Cady v. United States, 970 F. Supp. 97, 101 (N.D.N.Y. 1997). It is literally hornbook law that “custom and usage of trade” applies to give meaning to ambiguities in contracts. E. Allan Farnsworth, Contracts § 7.13 at 528-36 (1990); see also Metric Construction v. Nat’l Aeronautic & Space, 169 F.3d 747 (Fed. Cir. 1999) (applying trade practice and custom to contract interpretation as “the context and intention [of contracting parties] are more meaningful than the dictionary definition”). Pursuant to contract law, the custom and practice in the Seventh Circuit with respect to the interpretation of the waiver language and the parties’ expectations should have been considered in resolving the issue of what constituted “otherwise presenting an inconsistent position.” In fact, the district court was presented with overwhelming evidence that the ordinary custom and practice contemplated that a defendant’s admissions made pursuant to a proffer and the accompanying waiver agreement, would not be used against him unless he testified contrary to the proffer or presented witnesses who testified contrary to its substance. Krilich’s appellate briefs note that attorney Jeffrey Steinback had identified three cases where identical “waiver” contracts were executed, and he proceeded to trial, in each case, vigorously cross-examined prosecution witnesses, yet there were no “waivers” and no Rule 11(e)(6) statements were introduced. The appellate court did not even engage in a contract law analysis let alone discuss the “custom and usage” ordinarily accorded to this waiver language. It referenced Krilich’s claims of “customary” interpretation of the waiver provision, but found his was an “unnatural reading” of the waiver language. Krilich, 159 F.3d at 1025. In rejecting the universal principle that contractual documents, even in criminal cases, are to be construed against the drafter, the Krilich court claims that it gave the agreement a “natural reading.” Krilich, 159 F.2d at 1025. However, unlike statutory interpretation, contract interpretation defines “natural reading” in terms of context and the parties’ circumstances. Contract law takes into account disparities in bargaining power between the parties. See, e.g., Caldwell v. KFC, 958 F. Supp. 962 (D.N.J. 1997) (in contracts of adhesion, where one party has greater bargaining power, must look to adhering parties’ expectations in interpretation). Not only did the Seventh Circuit utterly ignore this defense argument, it demonstrated how truly divorced it is from the realities of trial practice –it actually stated that the waiver language empowered Krilich. See Krilich, 159 F.3d at 1024 (“[b]y authorizing the prosecutor to use his statements . . . Krilich made his representations more credible and thus strengthened his hand in negotiations”); see also Mezzanatto, 513 U.S. at 209 (Court summarily rejected the argument that there was a “gross disparity” in the bargaining power between the prosecution and criminal defendants). Without addressing its departure from applicable legal principles, the court simply declined to construe the agreement against the government, reasoning that, while it “might help Krilich today [it] would hinder bargaining for other defendants tomorrow.” Krilich, 159 F.3d at 1025. No further explanation was provided. The Federal Defender Program, joined by the Illinois Attorneys for Criminal Justice filed an Amicus Curiae brief authored by the Defender Program’s Deputy Director, Carol Brook, setting forth the consequences upon the entire criminal justice system of interpreting and enforcing this “waiver” in the manner occurring in Krilich. See Amicus Curiae Brief Of Illinois Attorneys For Criminal Justice & Federal Defender Program “(“Amicus Brief”). Amici pointed out that in light of Krilich, defense counsel must “significantly revamp their legal advice” regarding proffers – recommending a proffer to anyone who faces “even a remote possibility of future trial” borders upon incompetence. See id. at 3. As the amicus brief expressed, until the district court’s decision in Krilich, “no party to these agreements [or probably any other competent defense lawyer] ever imagined that they could be construed to effect a waiver of this enormous breadth.” Id. at 4. It was always understood pursuant to the prevailing Seventh Circuit caselaw that the agreement would only permit introduction of these statements to prevent the defendant’s perjury or perjury by proxy.” Id. In support of this position in the district court, Krilich presented affidavits of members of the defense bar, many of whom were former federal prosecutors. The Federal Defender program submitted an affidavit from a senior attorney practicing in that district since 1980, who reported that prior to Krilich, no one understood that proffer statements would be admitted simply based upon defense counsel’s cross-examination or at all absent defense testimony which contradicted the proffer statement. See Amicus Brief at 11; but see United States v. Griffin, 84 F.3d 912, 922-23 (7th Cir. 1996) (district court believed after the attorney’s cross-examination could be “inconsistent” with proffer where defendant had executed waiver, but counsel failed to preserve issue raised, so not decided on appeal). As aptly expressed by the Amici, this heretofore unheard of interpretation of the waiver language essentially converts this prosecution proffer letter, when accepted, into a guilty plea. The factual discussion as to how Krilich “waived” the inadmissibility of his proffered statements was no better than the legal discussion. According to the appeals court, Krilich “waived” Rule 11(e)(6)’s protections by eliciting truthful testimony on cross-examination, and by presenting one truthful defense witness, whose testimony was not the basis for the “waiver.” The court stated that defense counsel’s cross-examination was tantamount to eliciting “inconsistent evidence” — after all, “evidence is evidence” regardless of how and when it is presented. Id. This ignores a fundamental difference — when “evidence” is elicited on defense cross-examination, it comes from the prosecution witnesses. The defendant should be entitled to bring out truthful testimony from government witnesses which permits the jury to conclude that the defendant is not guilty. If not, why is defense counsel even present at trial? This was not a waiver of the right to contest the charges, it was not a waiver of a trial. A defendant who has not waived his right to trial is entitled to a meaningful trial which, in turn, requires meaningful cross-examination. Of course, this was not the district court’s view. It reasoned that the mere entry of a “not guilty” plea took a position “inconsistent with the proffer,” thus Krilich, once having proffered, just “might as well plead guilty.” Cert. Pet. at 7 (quoting district court transcript). On appeal, the prosecution urged that a defendant who previously made admissions pursuant to this type of waiver, would only be permitted to enter a “plea of not guilty followed by passivity at trial.” Krilich 159 F.3d at 1025. According to the government, this waiver language actually contains an “implicit” waiver of the right to trial on the merits, as we know it. Krilich could neither present any witnesses nor perform any cross-examination, let alone exercise his right to testify. And all this would be part and parcel of the “waiver” language set forth above, which does not contain one word about waiving these fundamental rights. Thankfully, the Seventh Circuit did not adopt this ludicrous position, though the position it did adopt exemplifies the real problem with the Krilich decision – it sends out not just mixed, but entirely contradictory signals. The court first rejected both the district court and the prosecution’s reading of the waiver language as essentially waiving the right to a real trial. The court said that, of course, Krilich was entitled to a trial, and he could engage in cross-examination designed to cast doubt upon a witness’s power of observation, or the ability to recount and remember, or their willingness to do any of the above, as that would not be “inconsistent” with a previous admission of guilt. No “waiver” would occur under these circumstances. Krilich, 159 F.3d at 1025. However, on the very next page of the decision, the court finds that defense counsel’s actions eliciting that: “the ninth hole is close to the clubhouse and easily observed,” and because “defense counsel got two witnesses to say that they were at the ninth hole . . . but didn’t think that Krilich was at the ninth hole then,” this provided grounds for waiver of Rule 11(e)(6). Id. at 1026. According to the Seventh Circuit, this cross-examination was intended to have the jury “infer that no one would attempt to fake a hole-in-one” and that Krilich did not fake the hole-in-one.” Id. It was on this basis that the court of appeals upheld the introduction of the proffer admissions. Id. This is an absurd position. Every defense cross-examination worth anything entails impeaching testimony regarding observation, perception, recall, (all deemed permissible by the court), but such impeachment is always done so that jurors infer innocence. In addition, the distinction between what the court deemed acceptable and what constitutes “otherwise taking a position inconsistent with the proffer” is impossible to comprehend and will be far more difficult to apply in practice. Does the government’s ability to introduce the most damning of all evidence – the defendant’s proffered admissions – depend upon the government witness’s phrasing of their testimony? For example, had the Krilich witness said: “I did not see Mr. Krilich,” or “I was not in a position to observe anyone else who was there” instead of “I don’t think Krilich was there,” would there have been no impeachment with the proffered admissions? This position is untenable. Now, post-Krilich, no right-minded defense counsel, whose plea negotiations, combined with a proffer, have failed, will dare cross-examine witnesses observations, perception or memory for fear that the witness will phrase something in a manner permitting introduction of the admissions. Practically speaking, this decision adopts the district court’s position that a proffering defendant “might as well plead guilty.” This reading of the waiver language cannot possibly comport with the requirements that a waiver of the right to trial and its associated guaranties, is a knowing and voluntary waiver. Speaking of knowing and voluntary, Krilich raised the issue that since he was not even remotely advised that the introduction of his admissions could ever occur based solely upon his attorney’s cross-examination, his waiver could not possibly be either knowing or voluntary. The court of appeals’ response was to throw up its judicial hands stating: “[a] defendant’s understanding of the consequences of his waiver need not be perfect.” Id. at 1026. According to the appeals court, this waiver provision provides an “assurance” of the defendant’s candor which makes this proffer “more useful to the both sides.” Id. at 1025. It was for this reason, retaining this “incentive” to keep defendants honest in their proffers, that the Krilich court refused to construe the proffer agreement against the government, as ordinary contract principles require. Again, the court needs some enlightenment regarding the realities of trial practice. The waiver provision in the proffer agreement is not designed and does not function to keep defendants “honest” or to promote “honesty” during negotiations. The real reason for its existence is to benefit prosecutors. It contains this utterly self-serving clause in order to provide prosecutors with a valuable weapon against defendants if defendants try to present a different version of events later. There may be nothing wrong with its inclusion in these agreements, but because it was drafted by prosecutors to protect prosecutors, it must be construed against them. It is not as if, once a defendant proffers a statement to the government, the government is somehow harmed in terms of trial preparation. Indeed, if a proffer is made but the plea falls through and the government requires additional time to prepare, the natural remedy, as defendants are so often told, is a continuance. It is difficult to see how the prosecution is put in any worse position on account of a defense proffer. Surely, one cannot believe that prosecutors would rely solely upon the defendant’s proffer for trial preparation once negotiations have broken down. This disastrous decision will have two effects, neither of which appears intended: it will both chill pre-indictment negotiations if proffers are required, and it will chill the remaining proffering defendants from exercising their constitutional right to trial. Pre-indictment negotiations are important to prosecutors and defendants alike. They often provide the only opportunity for the government to learn about more culpable individuals against whom they may have scant evidence and they may provide a defendant with an opportunity to reduce his criminal exposure. It is virtually impossible to know at early stages of the case what the client will wish to do once charges are actually brought or once the evidence is evaluated. In light of Krilich, it is also virtually impossible for defense lawyers, unless the case is hopeless, to advise clients of anything but “don’t sign on the dotted line.” Krilich’s defense team has petitioned the Supreme Court to resolve this matter. It may be wishful thinking, but perhaps, the Court will accept this case and resolve the issue differently to prevent the undesirable effects outlined above. Defense Victory Subverted: Prosecutor’s Disparagement of Defense Counsel Results in Waiver of Attorney-Client Privilege New issues have arisen in a case which we addressed previously involving a prosecutor’s denigration of defense counsel in United States v. Amlani, 111 F.3d 705 (9th Cir. 1997) (Amlani I), The Champion, Rico Report (July 1997). On appeal, Amlani obtained a remand from the appellate court so that an evidentiary hearing could be held regarding the prosecution’s disparagement of his lawyer, David Katz, which Amlani claims caused him to fire Katz. However, the latest appellate decision in the case, 169 F.3d 1189, 1191 (9th Cir. 1999) (Amlani II), makes it clear that Amlani is still far from receiving a new trial with his counsel of choice. Now, a different panel of the Ninth Circuit decided that, for purposes of this evidentiary hearing, the prosecution is entitled to have access to attorney-client privileged communications be-tween Amlani and all his attorneys in order to “defend against the [prosecution disparagement] charges.” Id. at 1196. Several years ago, Altaf Amlani, the president and owner of Finer Images, Inc., a Los Angeles-based telemarketing company, was charged in a 21-count indictment, with conspiring to commit wire fraud in violation of 18 U.S.C. § 371 and 20 substantive wire frauds counts in violation of 18 U.S.C. § 1343. Pre-trial, Amlani retained attorney David Katz who was representing Amlani and had made at least one appearance in district court. Amlani I, 111 F.3d at 711, n.1. Prior to jury trial, Katz moved to withdraw, citing Amlani’s failure to pay his fees as a reason. Id; Amlani II, 169 F.3d at 1189. Amlani retained new counsel and proceeded to trial. He was convicted of all counts and sentenced to 57 months imprisonment. In post-trial motions, Amlani contended that even prior to indicting him, the prosecution had begun to interfere with his Sixth Amendment rights. The prosecutor told Amlani and his wife that Katz “did not care about Amlani, was not competent and could not prevent Amlani’s conviction.” Id. at 710. While the government “denie[d] the disparagement,” they also took an “alternative position” just in case anyone finds that this “nonexistent disparagement” actually did occur, then it occurred in the presence of Amlani’s counsel as well as Amlani; hence, no prejudice. Amlani I, 111 F. 3d at 710-11. Without calling the government on the carpet for “equivocation,” the original panel decided that Amlani’s claims of disparagement, coupled with retaining new counsel, stated a Sixth Amendment violation. Id. The court rejected the government’s position that because Amlani obtained substitute counsel, there was no prejudice. It noted, instead that Amlani could have been prejudiced “from government influence which destroys the defendant’s confidence in his attorney.” Id. at 711. The court ruled that provided there was both disparagement and a change in counsel as a result of the disparagement, prejudice was to be presumed regardless of substitute counsel’s performance. Id. At this point, the original panel remanded this case for a hearing to determine whether the prosecutor did disparage Amlani’s counsel in Amlani’s presence and whether the alleged disparagement caused Amlani to retain a different lawyer. Id. at 719-720. The court further instructed that if the answers to both questions was yes, the district court must grant Amlani a new trial. Id. at 720. Back in front of the district court, the prosecution immediately took the offensive, using this remand, which was due to its own misconduct, as an opportunity to not only wreak havoc upon the attorney-client relationships by pitting Amlani and his various attorneys against each other, but also to obtain privileged attorney-client materials. See Amlani II, 169 F.3d at 1191. A hearing was conducted to litigate whether the attorney-client privilege “prevented the prosecution from inquiring into communications between Amlani and his current and former attorneys regarding the circumstances of Katz’s initial substitution.” Id. The district court ruled that “as far as [it was] concerned,” Amlani’s “attorney disparagement” claim waived his attorney-client privilege regarding communications about Katz‘s substitution. Id. at 1191. The government wasted no time in serving subpoenas seeking both documents and testimony from Amlani, his wife, his prior and now re-retained attorney David Katz, and his substitute attorneys, Don Howarth and Robert Corbin. These subpoenas sought “‘any and all documents, including but not limited to, correspondence, memoranda, notations and/or billing records which in any way refer or relate to’ the decision to hire Donald Howarth and Robert Corbin or to discontinue representation by David Katz.” Amlani II, 169 F. 3d at 1191. The government also sought testimony regarding the substance of privileged communications, at least, from Amlani and his attorneys. Id. Amlani appealed and was almost foreclosed from this relief since the issue did not fit within the exceptions permitting interlocutory review. This would have left both he and his attorneys no choice but to risk contempt sanctions. See id. at 1191-92. However, the Ninth Circuit reviewed this issue on a writ of mandamus concluding that the attorney-client privileges issues at stake left the defense with no other remedy but to petition for pre-production review. Id at 1193. After all, once disclosed, Amlani would be injured in a manner “not correctable on appeal” and because the issues were sufficiently “novel and important,” mandamus, an extraordinary remedy, by any account, could be warranted. However, the appeals court decided that “the most important” factor, in deciding to actually exercise mandamus authority, clear error on the part of the district court, was absent here. Id. Its substantive ruling, containing all of a few paragraphs of analysis, does not discuss in any detail the attorney-client privilege or the doctrine of waiver. See id. Rather, it simply concludes that the “focus” instead should be upon ”whether the disparagement claim itself requires disclosure of protected communications.” Id. at 1196. The court appears to have reasoned that a waiver occurred because “[i]n fairness, to defend against these charges, the government must have access to Amlani’s communications with counsel to determine whether in fact the disparaging comments caused the substitution of counsel.” Id. at 1196. Hence, the appeals court denied mandamus stating conclusively that the district court “committed no error in finding a waiver of the attorney-client privilege.” Id. The old “fairness requires” approach, while often ineffective on the defense side of the table, appeared to work well for the prosecution in this case. The prosecutor who caused this problem should know full well that in all likelihood, there are no “documents” which support Amlani’s position – the chances of anyone discovering some kind of memo, letter or note to the file that Amlani fired Katz because the prosecutor said that Katz was worthless, are slim to none. It is not as if either Katz or Amlani had any reason at that time to put this fact in writing. Katz probably did not know that this was the reason why Amlani did not pay him. It is doubtful that Amlani told him the real reason, whether it be out of a desire not to offend Katz or simply to avoid conflict. More likely than not, Amlani essentially “fired” Katz after hearing the prosecutor’s repeated disparagement, by simply not paying him the next fee payment due. It is equally doubtful that Amlani informed his new counsel that he fired Katz because the prosecutor said that he should. In fact, Amlani, believing what the prosecutor said, may have even parroted the prosecutor’s position and told his new lawyers that he fired Katz because he was no good. Permitting the government to use any such “evidence” of statements, or the absence of evidence against Amlani, as constituting some other reason for Katz’s discharge, would be unfair and unrealistic. Assume, however, there are substantive memos, the problem is then compounded. Assuming memos list all disputed factual issues and discussion about the evidence and also the client’s statement that he does not like the job his lawyer is doing, this substantive memo would probably be discoverable. It would go to the client’s state of mind in determining why the lawyer was fired. In fact, however, it may be impossible to divine specifically what directly caused the firing. Therefore, under the appellate court’s analysis, the prosecution’s bad-mouthing of the defense lawyer has permitted disclosure of defense secrets. Perhaps the documents may now even be admissible at trial. This is truly a preposterous result. The prosecution should be punished, not rewarded for the misconduct if it in fact occurred. It also provides little comfort that the Ninth Circuit specifically instructed that initial review of the privileged documents be conducted in camera by the district court. This was to be done to prevent the prosecution from viewing privileged documents which ultimately may not be relevant to the substitution of counsel issue. This is the general protective measure used in many instances, for example, when the prosecution seeks attorney-client materials under the crime/fraud exception. Under those circumstances, it is acceptable because the trial judge screens out whatever privileged matter is not germane to the issues, and the ultimate decision maker, the jury, can never be influenced in their decision by these materials, either deliberately or subconsciously. Here, however, the trial judge, who has already soundly rejected every one of Amlani’s claims, is both charged with screening these documents and making the ultimate decision regarding whether or not Amlani will receive a new trial. Recognizing that federal judges are endowed with superhuman abilities to disregard evidence, if there is to be any review, it should be by an independent judicial officer to ensure that the ultimate decision maker is not tainted by review of privileged materials. However, the ultimate irony of the latest Ninth Circuit’s decision is that Amlani, having fought to be represented by Katz, will likely lose the benefit of Katz’s counsel, at least for purposes of these evidentiary proceedings. Presumably, both Amlani and Katz will have to testify and turn over documents. Katz may find himself in a difficult position, since he represented to the district court previously that the reason for his withdrawal was because Amlani had not paid him. It is also ironic that Katz may now find that he is the prime witness against his own client on this matter. Amlani will likely be forced to hire separate counsel for himself and for Katz, as well, for purposes of these evidentiary proceedings. The prosecution should not be permitted to benefit from its wrongdoing by forcing the defense to undergo the rigors of this hearing and the expense of additional counsel, separate and apart from what was expended on legal fees. The only fair result, and the only result which has any teeth in terms of deterring future prosecutorial misconduct, is for the court to hold a hearing only regarding whether or not the disparagement occurred. If disparagement in any sufficient measure, by way of “government influence” occurred, see id. at 711, and, in fact, post-disparagement, the defendant did obtain new counsel, the inquiry should end there and the defendant should be afforded a new trial. When the government affirmatively creates this situation by interfering with Sixth Amendment rights, the burden should not fall upon the defense to prove, by submission of attorney-client materials or privileged testimony that he took actions in reliance upon the misconduct. The attorney-client relationship, as evidenced by the existence of the privilege itself, is viewed with probably the utmost importance in criminal law. A good attorney-client relationship, where the client has confidence in his or her attorney, is usually not automatic, it is earned. It is the product of much communication between client and lawyer, hard work on the case and/or a great deal of reassurance and hand-holding. In light of the power wielded by the prosecution and many clients’ often mistaken views that the prosecutor will actually help them if they do what he or she wants, the damage that can be done by a single comment disparaging defense counsel cannot be measured. At the very least, even if it does not cause the defendant to fire his lawyer (after all, he may have appointed counsel, in which case, his choices are limited), it can undo weeks or months of trust and rapport carefully built between attorney and client. Even if all this disparaging comment does is to cause the client to view his lawyer with a more jaundiced eye, this constitutes prejudice – after all, when the lawyer presents the client with his or her best advice regarding the case options, a lingering doubt in the back of the client’s mind may be all it takes for him to disregard his lawyer and make a disastrous decision. The Sixth Amendment and its position of importance within the judicial system should prohibit the prosecution from taking actions which create even such a lingering doubt about defense counsel. For the reasons discussed above, all necessary deterrent measures should be taken to ensure that no prosecutor disparages defense counsel in any manner where the defendant could learn of it. However, it does not appear that the Ninth Circuit is going to take any further steps to accomplish this. In fact, the latest Amlani decision, by subjecting the defendant, his wife, his lawyers and his attorney-client materials, to prosecution subpoenas, and disclosure of defense secrets, as well as an evidentiary hearing in front of an already-unfriendly judge, will ultimately discourage remedying these prosecutorial wrongs instead of righting them. Hopefully, the message itself relayed in Amlani, that prosecutors cannot disparage defense counsel lest they risk a potential Sixth Amendment violation will still provides some deterrent measure. Giglio Disclosure -- Prosecutors Just Don’t Get It In a well-reasoned decision addressing what should be unnecessary but are more often the unheeded requests of criminal defense lawyers, Judge Pregerson of the Central District of California granted a motion for discovery in United States v. Sudikoff, 1999 36 F. Supp. 2d 1196 (C.D. Cal. 1999), and ordered the government to produce a wide-ranging variety of materials relating to the testimony of its informers. Though prosecutors should have recognized long ago that Giglio requires that they produce these materials even absent a defense request, this case provides a glaring example of their recalcitrance. In resolving this issue, Judge Pregerson successfully undertook the much-needed task of setting forth “the boundaries of the government’s discovery obligations relating to the agreements between the government and accomplice witnesses.” Id. In Sudikoff, the government charged several defendants with violating various Securities and Exchange laws, relying, with respect to certain allegations, upon accomplice witnesses’ testimony. See id. Defendant Sudikoff, represented by Brad Brian, of Munger, Tolles & Olson, originally brought the discovery motion, seeking production of documents and information “relating to the period between an accomplice witness’s initial contact with the government regarding possible cooperation and the point at which the witness and the government reached an agreement concerning the accomplice witness’s testimony.” Id. Sudikoff’s motion pertained to one of his former associates, Phil McInnes, who received immunity and would have testified for the prosecution. Id. However, at oral argument on the motion, Gordon Greenberg, a.k.a. “Gordo” of McDermott, Will & Emery, on behalf of codefendant Michael Cheramy, joined the motion and requested that it be extended to all informer witnesses. Id. The prosecutor’s original “efforts” at Brady/Giglio compliance only encompassed producing “information” from the time period around April 1995, shortly after McInnes and the government reached a deal regarding immunity, even though McInnes’ negotiations extended as far back as the fall of 1994. Among other things, Sudikoff requested any evidence of communications between the government and McInnes or his lawyer, “including materials relating to ‘proffer sessions’ that occurred before the date of the first FBI 302’ for Mr. McInnes.” Sudikoff, 36 F. Supp. at 1196. Sudikoff asserted that McInnes had “proffered various versions of his testimony” beginning in Fall 1994 until the final version was tendered in April 1995. Id. at 1198. In support of his motion, Sudikoff relied upon the most fundamental precepts governing criminal discovery: the doctrines requiring production of materials pursuant to Brady, Giglio and the Jencks Act. He sought these materials because they had direct bearing upon McInnes’ credibility and his motives and because they would constitute prior inconsistent statements for impeachment purposes at trial. Id. at . The clear relevance of these materials did not prevent the prosecution from refusing to comply. It first attempted to avoid disclosure by arguing that the material would not be “admissible evidence,” thus, it could not be Brady or Giglio material. Id. Fortunately, Judge Pregerson was unconvinced. His decision firmly restates the oft-ignored teachings of Brady v. Maryland, 373 U.S. 83, 87 (1963), that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,” with emphasis on “[e]vidence that weakens the credibility of a prosecution witness.” Id. at 1197-98 at (citing Thomas v. United States, 343 U.S. 49 (9th Cir. 1965). The judge considered the Brady and Giglio claims simultaneously, recognizing, of course, that issues arising out of Giglio v. United States, 405 U.S. 150 (1972) (any evidence of “any understanding or agreement as to a future prosecution would be relevant to [informer witnesses’] credibility”) were really just a subset of the Brady doctrine. Sudikoff, 36 F. Supp. 2d at 1197. Judge Pregerson then engaged in a detailed and thoughtful analysis of how to determine what evidence falls within Brady’s scope requiring pretrial discovery. The standards for determining what is Brady material are largely found in appellate decisions resolving whether suppressed evidence was sufficiently “material” to require reversal of the conviction. Id. at 1198-99. Notwithstanding this judicially imposed materiality requirement, Brady itself requires that “all evidence favorable to an accused” must be disclosed — even though a due process violation, requiring reversal of a conviction, only occurs when such suppressed favorable evidence was, in fact, “material. Id. at 1199. In the appellate courts, “‘evidence is considered material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Sudikoff, F. Supp. at 1198 (citations omitted). An appellate court, applying this test must decide if the failure to produce these materials affected the outcome of the trial, thus, a belief, viewing the entire trial in hindsight, that the evidence would neither be admissible nor lead to admissible evidence, is significant. Id. However, a decision “[w]hether disclosure would have influenced the outcome of a trial can only be made after the trial is completed and the total effect of all the evidence weighed against the presumed effect of the undisclosed Brady material. Hence, this “materiality” standard can only be applied on appeal. Sudikoff, 36 F. Supp. 2d at 1198. This type of balancing test cannot occur pretrial, before any evidence, let alone all the evidence, is presented. Thus, Judge Pregerson astutely observed that it would be “inappropriate” for the district court judge, not yet privy to all the evidence, to decide that certain favorable evidence should not be produced because it “seems insufficient to alter a jury’s verdict.” See Id., at 1199. Beyond inappropriate and premature, such a determination would be next to impossible to make with any accuracy. Trials are unique events, taking on lives of their own. Attempting to predict what the evidence will show, let alone what evidence will alter a verdict, is not only difficult but as most lawyers have learned the hard way, can be dangerous as well. There are authorities which hold that the Brady’s appellate “analytic framework,” particularly the emphasis on materiality “speaks to the situation that arises post-trial.” Daughtry v. Dennehy, 949 F. Supp. 1053, 1059, n.2 (D.Mass. 1996). In Daughtry, the district court discussed the difference between interpreting post-trial Brady issues with a fully developed record and giving Brady “meaningful life.” In the trial court, Daughtry also notes that in the pre-trial Brady case law, materiality “is largely in the eye of the beholder,” but at least in the First Circuit, authorities ensure that “some eye other than the government’s will bear on that determination.” Id. at 1059, n.2. Therefore, at the pre-trial and trial stage, the district court should define Brady obligations consistent with the plain language of the decision and require production of all “evidence favorable to an accused” with favorable defined as “that which relates to guilt or punishment,” and that “which tends to help . . . by either bolstering the defense’s case or impeaching prosecution witnesses.” Sudikoff, 36 F. Supp. 2d at 1199 (citing Brady, 373 U.S. at 87; Giglio, 405 U.S. at 154-55). If the sought-after evidence meets these parameters, meaning “it might reasonably be considered favorable to the defendant’s case,” it must be produced. Id. It is also significant that the appellate standard for Brady violations concerns itself with the outer bounds of permissible standards of prosecutorial behavior. Whether something rises to such an extreme that it constitutes a due process violation should not be the standard by which the government comports itself. The district judge aptly noted that because “the suppression [of favorable evidence] may not have been sufficient to violate due process does not mean that it was proper.” Id. at 1199. As is frequently the case with claims that a defendant received ineffective assistance of counsel, while counsel’s substandard performance may not be deemed sufficiently “prejudicial” to require reversal, it was nonetheless improper and should not have occurred. Similarly, with Brady obligations, suppression of exculpatory evidence is equally improper and also, should not occur. Contrary to the prosecution’s definition of “evidence,” Judge Pregerson decided that “evidence as contemplated by both Brady, Giglio and progeny, did not require production of only “admissible” evidence. The authorities have always discussed Brady materials in broader terms including evidence “likely to lead to favorable evidence.” Sudikoff, 36 F. Supp. 2d at 1200. Appellate courts have found Brady violations where the undisclosed evidence was inadmissible but it could have led to material admissible evidence. See id. (citing United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989). Permitting a prosecutor, in his or her unchecked discretion to decide whether or not “favorable evidence” would be admissible, thus, should be produced, poses its own set of dangers. When it comes to disclosure of evidence, prosecutors may take an overly narrow perspective on admissibility or they may fail to account for the defendant’s strategy to admit such evidence, including impeachment rules, hearsay exceptions or even appealing to judicial discretion and principles of fundamental fairness. Also, unless the defense lawyers are privy to the previously undisclosed “inadmissible” materials, they will never know whether the government witness “opened the door” to admissibility by virtue of their testimony. Finally, because it is rare that any one category of evidence is per se excluded, if a prosecutor can decide that certain favorable evidence will not be produced because it is “inadmissible,” the defense is deprived of the opportunity to seek its admission from the trial court, the only entity entitled to make admissibility determinations. See Fed. R. Evid. 104(a) (admissibility shall be determined by the court). While Brady material is not confined to “admissible” evidence, neither are its parameters unlimited. Sudikoff properly narrowed the definition of Brady materials, refusing to require production of either incriminating evidence or materials which merely assist the defendant in readying himself for trial because Brady neither “provide[s] for disclosure of inculpatory evidence nor does it “create a right to assistance in trial preparation.” Sudikoff, 36 F. Supp. 2d at 1200. This defense victory for Brad Brian and his client (as well as untold others), resulted in the court’s specifically requiring production of: (1) informer’s proffers leading to the leniency agreement with “proffers” defined as statements that reflect an indication of possible testimony; (2) any information revealing any variations in the proffered testimony; (3) any information that reveals the nature of the negotiation process that led to the leniency agreement; (4) any proffers made by the informer’s lawyers (not privileged because they are intended to be conveyed to another); (5) any notes or documents created by the government reflecting defense proffers, testimonial variations, and the nature of the negotiation process leading to the informer’s leniency agreement. Sudikoff, 36 F. Supp. 2d at 1206. All of these materials would reveal either inconsistencies or deviations in the witness’s proposed testimony or would reveal the informer’s motives for testifying, thus directly bear upon credibility. Needless to say, production of material which illuminates the process leading up to the final deal can cast a shadow on the accomplice’s credibility in a manner which simple disclosure of the deal itself would not. The government argued that these inconsistent versions of its informer’s testimony should not be produced because they were “innocuous,” (the well-established “innocuous” exception to Brady). The district court rejected this, noting first, that neither the court nor the government was privy to defense strategy, and could not say how “innocuous” these inconsistencies may be with regard to the theory of defense. Second, the court reiterated the principle that “[w]here doubt exists as to the usefulness of evidence , [the government] should resolve such doubts in favor of full disclosure.” Id. at 1202 (citation omitted). After all, the Supreme Court held, in Giglio, that withholding any evidence relating to an agreement with an informer where the informer would receive some form of leniency violates Brady, not just withholding the evidence of the agreement itself. See id. In any event, if these were truly just “innocuous inconsistencies,” prosecutors should be happy to provide them because either the defense will do nothing with them, or risk subjecting themselves to the all-too familiar argument that the defendant is putting up a “smokescreen” or makes “much ado about nothing.” Finally, the court noted the exceptional need to reveal these matters when the government’s case deals with informers, those deemed “inherently untrustworthy” — “‘cut from untrustworthy cloth’,” Id. at 1203 (quoting United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993)). However, it was equally clear that the potential admissibility of any or all of the to-be-disclosed information was left for another judicial day. Id. Judge Pregerson reminds us that Brady seeks to guarantee that the trial is one which “comport[s] with standards of justice” and that “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of justice suffers when any accused is treated unfairly.” Sudikoff, 36 F. Supp. 2d at 1201 n. 4 (quoting Brady, 373 U.S. at 87-88). We accomplish this, consistent with Brady’s goals by “protect[ing] the quality and completeness of the evidence” to be presented. Id. Obviously, the Brady/Giglio materials ordered disclosed by Judge Pregerson should have been automatically produced by prosecutors. However, anyone who has been involved in cases with informer witnesses can attest that usually, this is simply not so. Perhaps, prosecutors have decided that “evidence” is “innocuous” or “inadmissible” or “immaterial” or perhaps, defense lawyers have not pressed sufficiently to obtain these materials in light of the lack of a well-reasoned decision such as Sudikoff. In any event, Judge Pregerson, in a manner entirely consistent with justice and precedent, removes those obstacles from the path. Regardless as to why it took so long to state the obvious or modify prosecutors’ behavior, it benefits all participants in the criminal justice system that these obligations have now been spelled out. Hopefully, this much-needed guidance will lead to “fair trials,” those which “comport” with justice” at least within the Central District of California, as the Brady Court, among others, envisioned. Readers are a vital source of information without which this column could not be supplied with current information on RICO developments. Information regarding developments in pending cases, decisions and interesting briefs and motions should be sent to: RICO Report Barry Tarlow 9119 Sunset Boulevard Los Angeles CA 90069 Phone (310) 278-2111 Fax (310) 550-7055 | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
