Opposition Brief — Colorado v. Auld

G) «JAN 27 1992

No. 91-841 | OFFICE Gr ite Cheng

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In The

Supreme Court of the United States

October Term, 1991

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THE STATE OF COLORADO,

Petitioner,

ROBIN AULD,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Colorado Court Of Appeals

Court Of Appeals No. 89CA0995

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RESPONDENT’S BRIEF IN OPPOSITION

°

HapDON, Morcan & Foreman, P.C.

Haro_p A. HADDON

(Counsel of Record)

Racuet A. BELuis

150 East Tenth Avenue

Denver, Colorado 80203

(303) 831-7364

Attorneys for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (02) 342-2831

TABLE OF CONTENTS

Page

oo err Pre rrr re ee 1

Reasons Why the Writ Should Be Denied.......... 4

a

The questions presented in the Petition were

not preserved or decided in the proceedings

WE ca Pivies) pe ecken abe sb Osa vi eees eh oe eee

The decision below is based on principles of

separation of powers and the state court’s

supervisory authority, both of which are doc-

trines of state constitutional law .............

There being no federal question presented in

the decision below, Petitioner cannot meet the

jurisdictional requirements of 28 U.S.C. § 1257

or Supreme Court Rule 10.1.................

ee ga SE ee eh OG Ee ees i EE eC eee

ii

TABLE OF AUTHORITIES

Page

Cases

Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed.

FP CORD). .n cccncdcnecvenspanepiskeersasnarsernates 9

Highlands Farm Dairy v. Agnew, 300 U.S. 608, 57

at. SOD, 81 L.Ed. GOD CREF). noc cc tvcscucucsenses 9

In Re Interrogatories Propounded by the Senate, 189

Colo. 1,.536 Pd SOG CIG7SR oo oc csncccscccsctsvccce 9

International Brotherhood v. Hanke, 339 U.S. 470, 70

S.Ct. 773, 94: L.Ed. 995 (1950)... eco vccsevccscces 9

Luther v. Borden, 7 How. 1, 48 U.S. 1, 12 L.Ed. 581

(TONDO) oo civic veers cceséancestgueatenaeianeensee: 9

May v. Supreme Court of State of Colorado, 374

F.Supp. 1210 (D. Colo.), aff’d, 508 F.2d 136 (10th

Cir. 1974), cert. denied, 422 U.S. 1008 (1975) ........ 9

People v. Auld, 815 P.2d 956 (Colo. App. 1991), cert.

WOE ov 6.8 dos ce 1, 8, 12

People v. Auld, 788 P.2d 1275 (Colo. 1990) ............ 3

People v. District Court, 632 P.2d 1022 (Colo. 1981)..... 9

People v. Reichman, 819 P.2d 1035 (Colo. 1991)........ 7

State Board of Medical Examiners v. District Court,

138: Colo. 227, S31 F.2d SUZ CISSED onc recsecnscccess 9

Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct.

1263, 1 LB. Bb 1904 CORI). wakcw ic eduseeas ceces 9

United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637,

26 LEG. 2 B68 Can: & ci oeedeussnuee ee e 7, 10

ili

TABLE OF AUTHORITIES - Continued

Page

STATUTES

ec eccctccecccunvece 10

RULES

Colorado Code of Professional Responsibility......... 7

CE) 10

OTHER AUTHORITIES

Article III of the Colorado Constitution ........ 7,9, 11

Article IV, Section 2 of the Colorado Constitution .... 11

Amendment V of the United States Constitution ..... 3

Amendment XIV of the United States Constitution ..... 3

Article IV, Section 4 of the United States Constitu-

ec acces edveccuescdececceces 9

Michael E. Tigar, Jud‘cial Power, the “Political Ques-

tion Doctrine,” and Foreign Relations, 17 UCLA L.

ea aad hho sone ce tee se ckbaccenes 9

INTRODUCTION

Respondent Robin Auld opposes the State of Colo-

rado’s Petition for Writ of Certiorari to review the judg-

ment and opinion of the Colorado Court of Appeals in

People v. Auld, 815 P.2d 956 (Colo. App. 1991), cert. denied.

Seeking to fashion a federal case out of the state

court’s application of state constitutional principles, Peti-

tioner has misstated the holding of the Colorado Court of

Appeals in the Opinion Below (Petition pp. 1-2), misrep-

resented the grounds upon which Petitioner requested

review in the Colorado Supreme Court (Petition p. 2), and

manufactured, for this Court’s consideration, legal ques-

tions that are not ever raised by the Colorado court's

decision.

The Colorado Court of Appeals’ opinion is based

upon a well-developed factual record. (Petitioner’s App.

pp. 2-3) Mr. Auld is an attorney whose practice in

Durango, La Plata County, Colorado emphasized the

defense of individuals accused of crimes. Based on a stale

and unsubstantiated rumor that Mr. Auld at one time

accepted drugs in lieu of fees, the steering committee for

a La Plata County anti-drug program (“the Committee”)

made Mr. Auld the target of an undercover investigation.

The members of the Committee — the local District Attor-

ney, the County Sheriff, and other local police and sher-

iff’s officials - often discussed their desire to compromise

Mr. Auld and then pressure him into providing incrimi-

nating information about his clients and other members

of the community. To that end, the Committee devised an

elaborate scheme. A fictitious complaint, drafted by the

District Attorney, typed by his secretary, signed by a

County Sheriff’s officer and notarized by the District

Attorney’s wife, was filed in the local county court. The

“complaint” purported to “charge” an undercover sher-

iff’s officer with possession of drugs.and weapons. The

undercover officer was brought before the county court

judge to answer to the fake “charges”. The county court

judge was completely unaware of the pivotal role she was

to play in this charade. The undercover officer made false

statements to the county court judge and lied under oath

to obtain his release on a surety bond. The undercover

officer then came to Mr. Auld for legal assistance in his

“pending criminal case.”

The officer did retain Mr. Auld, paying a small

retainer fee in cash derived directly from the drug

enforcement funds. When the officer suggested paying

the balance of Mr. Auld’s fee by giving “something in

trade,” Mr. Auld flatly refused to accept cocaine as pay-

ment. The undercover officer persisted in the Commit-

tee’s campaign to compromise Mr. Auld in any way

possible. He pressured Mr. Auld to accept a weapon as a

fee. Mr. Auld refused. The officer pressed him again. Mr.

Auld steadfastly demanded proper cash payment. Finally,

reluctantly, and after unrelenting pressure from the offi-

cer, Mr. Auld agreed to hold a gun at a “black market

price,” but only as collateral for the money owed. Then

the undercover officer stated that he was leaving town for

good and absolutely could not pay $500 in outstanding

legal fees. Mr. Auld unwillingly agreed to take the

weapon in payment for the debt. As soon as Mr. Auld

took possession of the weapon he was arrested.

Immediately following the arrest, the District Attor-

ney and his agents told Mr. Auld that possible charges

would “go away” if Auld violated his attorrey-client

privilege by providing information on present and former

clients. (Petitioner’s App. p. 3) Mr. Auld refused. See

People v. Auld, 788 P.2d 1275 (Colo. 1990). As a result,

charges were filed. The District Attorney obtained

appointment of a special prosecutor, an assistant district

attorney from another judicial district (now appearing as

counsel for Petitioner), to handle the case, and charges

were filed.

On Mr. Auld’s motion, and after extensive evidenti-

ary hearings, the state district court dismissed the

charges, holding that the state prosecutor’s outrageous

misconduct in making the case violated the state’s doctrine

of separation of powers. (See Respondent’s Appendix.)

Petitioner appealed the dismissal to the Colorado

Court of Appeals. In a fact-driven decision based wholly

on Colorado constitutional principles, the Colorado Court

of Appeals found that the state prosecutors had commit-

ted outrageous misconduct violating the doctrine of sep-

aration of powers, that the imposition of the sanction of

dismissal was an appropriate exercise of the court’s

supervisory power, and that dismissal under these speci-

fic circumstances did not violate the doctrine of separa-

tion of powers. (Petitioner’s App. pp. 3-8)

Contrary to Petitioner’s characterization of the state

court proceedings, the district court did not hold that the

government’s misconduct violated the Due Process

Clauses of the Fifth or Fourteenth Amendments of the

United States Constitution, and the order of dismissal

was not based on a due process violation. Nor did the

Colorado Court of Appeals hold that the government’s

misconduct violated the Due Process Clause of the United

States Constitution. The Colorado Court of Appeals

declined to apply a due process analysis to this case but

focused instead on the state court’s authority to exercise

its supervisory powers in response to the state prosecu-

tor’s violation of separation of powers. (Petitioner’s App.

p. 6)

e

REASONS WHY THE WRIT SHOULD BE DENIED

1. The Questions presented in the Petition were not

preserved or decided in the proceedings below.

To make it appear that a federal constitutional ques-

tion is present, Petitioner’s Questions Presented for

Review frames the issue as follows: Once a criminal

defendant establishes that charges against him were the

product of pervasive government misconduct, when does

the United States Constitution require dismissal of the

criminal charges and when does the separation of powers

doctrine prohibit dismissal? The remainder of the Petition

suggests in various ways that the courts below dismissed

charges pending against Mr. Auld to vindicate some ill-

defined notions of due process of law rather than some

firmly-rooted constitutional principle. In fact, the ques-

tions raised in the Petition are neither reflected nor pre-

served in the proceedings below.

In the district court, Mr. Auld argued two separate

motions seeking pre-trial dismissal of the charges lodged

against him. Mr. Auld’s first motion, which was rejected

by the court, asserted that outrageous misconduct by the

District Attorney and his confederates violated Mr.

Auld’s right to due process of law. This due process

motion was denied. (Respondent’s Appendix p. 3) How-

ever, the court agreed with Mr. Auld’s second motion,

which argued that government misconduct violated the

state law doctrine of separation of powers and warranted

dismissal as a matter of the court’s supervisory power

over public prosecutors. (Respondent’s Appendix p. 14)

Citing the state judiciary’s power to protect itself

against public prosecutors who would make the courts

accomplices to prosecutorial misconduct, the district

court observed:

How far can the Executive Branch involve the

Judicial Branch, whether knowingly or

unknowingly, as an accomplice to its undercover

Operations. . . . If there is any separation of

powers and any independence of the branches

of government, then it cannot be that a law

enforcement officer or a district attorney decides

when and to what extent the judiciary becomes

involved, knowingly or unknowingly, in its

undercover operations. This is particularly so

when the courts are supposed to be the one

arena of impartiality favoring neither the pros-

ecution nor the defense .

The courts should not, and this Court certainly

does not, sanction the filing of false and ficti-

tious documents with the Court nor the securing

of false and fraudulent misrepresentations to the

Court regardless of the motive. In my mind, this

is a Clear line of distinction which separates this

case from . . . those cases [decided under due

process principles] and constitutes an impermis-

sible taint upon the integrity and impartiality of

the courts. Therefore, defendant's motion to dis-

- miss for governmental misconduct is granted.

(Respondent’s Appendix pp. 11-14)

Petitioner appealed this order of dismissal to the

Colorado Court of Appeals. Mr. Auld did not cross-

appeal the denial of his due process motion, and that

matter therefore was not before the Court of Appeals.

in its briefs to the Colorado Court of Appeals, Peti-

tioner admitted what the district court had found — that

state agents had committed acts which might be charge-

able as criminal offenses in their pursuit of Mr. Auld.

Petitioner nonetheless contended that because Mr. Auld’s

due process rights were not violated by that misconduct,

dismissal under the circumstances violated separation of

powers principles. The Court of Appeals rejected Peti-

tioner’s argument, finding that the local prosecutor’s

conduct violated the doctrine of separation of powers,

that the courts possess supervisory power to fashion a

remedy for such abuses of prosecutorial authority and

that dismissal was an appropriate remedy in this case.

The Court of Appeals declined Petitioner’s invitation to

apply a due process analysis to the facts presented. (Peti-

tioner’s App. p. 6) The Court of Appeals also rejected

Petitioner’s contention that the electoral process afforded

the sole remedy for this prosecutorial abuse.

Petitioner filed a petition for certiorari in the Colo-

rado Supreme Court, raising only the following related

issues of state law: (1) if the defendant is not prejudiced

by prosecutorial misconduct, does dismissal violate the

doctrine of separation of powers by infringing on the

district attorney’s authority to enforce Colorado law; (2)

was the government’s conduct outrageous under Colo-

rado law; and (3) can prosecutors file fictitious cases in

enforcing Colorado law. Through the first question, Peti-

tioner sought to vindicate the district attorney’s “author-

ity to enforce Colorado law.” This authority arises

exclusively under Article III of Colorado’s constitution.

The second question was an unabashed plea for review of

these facts under Colorado’s due process standards, even

though the case had not been decided below on due

process grounds. The third question was a request that

the Colorado Supreme Court provide some guidance to

state prosecutors conducting “sting” operations.

Although the Colorado Supreme Court declined to

answer these questions on certiorari, the issues were laid

to rest when the Supreme Court disciplined the District

Attorney whose misconduct was at the center of this case.

In People v. Reichman, 819 P.2d 1035 (Colo. 1991), the

Colorado Supreme Court held that the District Attorney's

“responsibility to enforce the laws in his judicial district

grants him no license to ignore those laws or the Code of

Professional Responsibility,” and that the District Attor-

ney violated Colorado’s Code of Professional Respon-

sibility through the deception he practiced on the district

court in his pursuit of Mr. Auld.

Thus, the issues suggested, the theme explored, even

the policy concerns pressed throughout Petitioner’s peti-

tion are betrayed by the procedural and factual history of

this case. The decision below was not “based on an

erroneous application of the Due Process language of

[United States v.) Russell.” (Petition p. 8) Any prosecutor

who actually reads the decision rendered by the Colorado

Court of Appeals in this case could not honestly “con-

clude that an undercover operation involving the filing of

a fictitious court case is likely to violate the Due Process

Clause.” (Petition p. 10) Colorado prosecutors do not

have the “right” to use state court judges or the court

system as players and props in their investigative

schemes. Creation by the district attorney of a fictitious

case is unethical conduct under Colorado law. The Auld

decision reconfirms that state courts are empowered by

Colorado’s constitution to respond to this kind of pros-

ecutorial overreaching, nothing more.

2. The decision below is based on principles of separa-

tion of powers and the state court’s supervisory

authority, both of which are doctrines of state con-

stitutional law.

Petitioner’s entreaty to this Court rests entirely on

the premise that the courts in Colorado have overstepped

federal constitutional principles in their haste to fashion a

remedy for prosecutorial misconduct. Petitioner’s argu-

ment flows from a fundamental misunderstanding of con-

stitutional jurisprudence.

The Colorado court’s dismissal of state charges as a

remedy for a local prosecutor’s misconduct in a state

court proceeding is not prohibited by separation of

powers principles embodied in the United States Consti-

tution. While the doctrine of separation of powers may be

extremely important and fundamental to both federal and

state governments, there is no federal constitutional sep-

aration of powers guaranty. One could be fashioned from

the “republican form of government” clause of Article IV,

Section 4, but that clause is unjusticiable. Luther v. Borden,

7 How. 1, 48 U.S. 1, 12 L.Ed. 581 (1849). See Michael E.

Tigar, Judicial Power, the “Political Question Doctrine,” and

Foreign Relations, 17 UCLA L. Rev. 1135 (1970).

In state proceedings, separation of powers is a princi-

ple of state constitutional law. “Whether the legislative,

executive, and judicial powers of a State shall be kept

altogether distinct and separate, or whether persons or

collections of persons belonging to one department may,

with respect to some matters, exert powers which, strictly

speaking, pertain to another department of government,

is for determination of the State.” Dreyer v. Illinois, 187

U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79, 84 (1902). See

Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1

L.Ed. 2d 1311 (1957); International Brotherhood v. Hanke,

339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995 (1950); Highlands

Farm Dairy v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed.

835 (1937). Any alleged violation by a branch of state

government of that state’s constitutional separation of

powers is a matter of state concern and does not violate

the federal constitution. May v. Supreme Court of State of

Colorado, 374 F.Supp. 1210 (D. Colo.), aff'd, 508 F.2d 136

(10th Cir. 1974), cert. denied, 422 U.S. 1008 (1975). Accord,

In Re Interrogatories Propounded by the Senate, 189 Colo. 1,

536 P.2d 308 (1975).

In Colorado, separation of powers among the three

branches of government is mandated by Article III of the

Colorado Constitution, People v. District Court, 632 P.2d

1022 (Colo. 1981), and each department of government

derives its power solely from the state’s constitution.

State Board of Medical Examiners v. District Court, 138 Colo.

227, 331 P.2d 502 (1958). Thus, Petitioner’s complaint that

10

the district court violated the doctrine of separation of

powers by dismissing the charges against Mr. Auld in

response to prosecutorial misconduct, raises issues only

of state law.

Irrelevantly, Petitioner cites cases holding that gov-

ernment misconduct not rising to the level of due process

violation will not warrant the dismissal of charges under

federal law. (Petition pp. 6-7, n.2-4) In each case, the

reviewing court concluded that misconduct, if proved,

did not meet the high threshold for due process viola-

tions set by this Court in United States v. Russell, 411 U.S.

423, 93 S.Ct. 1637, 36 L.Ed. 2d 366 (1973).

Not one of these cases considered a state court’s

right, guaranteed by that state’s constitution, to protect

its own integrity once it has been compromised by pros-

ecutorial overreaching. Not once is the issue addressed in

Petitioner’s argument to this Court, yet that is the only

reason that Colorado’s courts dismissed the charges

against Mr. Auld.

3. There being no federal question presented in the

decision below, Petitioner cannot meet the jurisdic-

tional requirements of 28 U.S.C. § 1257 or Supreme

Court Rule 10.1.

This Court lacks jurisdiction to consider Petitioner’s

claims. In an effort to bring its claims before this Court

under 28 U.S.C. § 1257 and Supreme Court Rule 10.1(b)

and (c), Petitioner has misstated the holding of the Colo-

rado Court of Appeals and misrepresented the constitu-

tional basis for that holding.

11

This case was decided under principles of separation

of powers and supervisory powers, both uniquely state

constitutional doctrines when invoked in state proceed-

ings. See Colorado Constitution Article III and Article IV,

Section 2. The district court determined that the executive

branch had engaged in conduct which compromised the

judicial branch and violated the doctrine of separation of

powers, and that this conduct was so outrageous as to

demand a judicial response which protected the integrity

of the court system. Exercising its supervisory power

over the executive branch, the district court ordered the

dismissal of the charges which were the result of that

misconduct. The Court of Appeals agreed with the find-

ings of fact, conclusions of law, and order of dismissal.

Although justifiably outraged by the government’s

actions, the Colorado Court of Appeals expressly noted

that Mr. Auld’s due process claim was not the basis for

the trial court’s order of dismissal and was not, therefore,

in issue on appeal. (Petitioner’s App. p. 4)

Because this case was decided under independent

state constitutional principles unrelated to the Due Pro-

cess Clause or any other provision of the United States

Constitution, no federal question is presented by this

case. Moreover, there can be no conflict among state

courts of last resort with regard to the issue determined

by the Colorado Court of Appeals, since the case inter-

prets and applies only Colorado’s constitution. Petitioner

can offer no legitimate reason why this Court should

accept jurisdiction in this case.

¢

12

CONCLUSION

Petitioner misapprehends the basis for the Court of

Appeals’ decision in People v. Auld. That decision, on its

face and in the context of the issues resolved by the

district court’s order of dismissal, must be read for what

it is: a fact-bound application of state constitutional doc-

trine. The state appellate court, like the state district court

before it, reviewed the evidence of the state prosecutor’s

conduct, measured it against the Coiorado Constitution’s

separation of powers guarantees, and found the state

prosecutor’s conduct wanting.

As to matters such as these arising solely under

Colorado’s laws, this Court can provide no relief. This

Court should deny the State of Colorado’s Petition for

Certiorari.

Dated: January 27, 1992.

Respectfully submitted,

HADDON, MorGAN & Foreman, P.C.

Haro_p A. HADDON

(Counsel of Record)

RacHet A. BELLIS

150 East Tenth Avenue

Denver, Colorado 80203

Telephone: 303/831-7364

Resp. App. 1

RESPONDENT’S APPENDIX

DISTRICT COURT, LA PLATA COUNTY, COLORADO

CASE NO. 88 CR 129

PEOPLE OF THE STATE OF

COLORADO,

Plaintiff,

VS.

ROBIN K. AULD,

Defendant.

This matter coming on for motions hearings on April

24 and 25, 1989, in the District Court for La Plata County,

Colorado, the defendant present in person and by his

attorney, Mr. Harold A. Haddon, and the People appear-

ing by its attorney, Mr. Keith Cross, the Court taking

testimony, hearing evidence, reviewing the Court file,

and being otherwise advised in the premises, hereby

enters the following order:

* ” *

IV. DEFENDANT’S MOTION TO DISMISS BASED ON

GOVERNMENTAL MISCONDUCT

The defense in this case filed two motions to dismiss,

one based on governmental misconduct and the other

based on outrageous government misconduct as a due

process violation. The defense alleges four grounds for

Resp. App. 2

dismissal and the Court will consider three of them

together, namely, that the officers did not have probable

cause or suspicion to target the defendant for an under-

cover operation and even if they did, that when the

defendant refused to accept drugs for fees, the under-

cover action should have been discontinued. The Court

rejects this argument. First of all, it is contrary to the

evidence adduced at the preliminary hearing, the motions

hearings and the tape recordings of the conversations

between the undercover officer and the defendant. The

evidence is clear that the undercover officer offered the

defendant, in his capacity as an attorney, drugs in

exchange for fees and legal services, however, the defen-

dant rejected the drugs and instead himself offered to

accept guns at black market prices. There is no case law

nor statutory law to suggest or support the defendant’s

contention in this regard. Secondly, the defense claims

that the government’s conduct was outrageous in that it

constituted am impermissible infringement on the attor.

ney/client relationship by creating a false client for the

attorney, by trying to turn the attorney into an informant

against his clients, and involves tape recordings of the

attorney/client discussions without the consent of the

attorney. The Court also rejects this claim for the reasons

stated above in the discussion dealing with the suppres-

sion of the tape recordings.

Likewise, and thirdly, the defendant claims that the

law enforcement officer deliberately failed to record cer-

tain conversations and thereby engaged in selective

recording resulting in the destruction of potentially

exculpatory evidence. Again, this has been discussed

above, and the Court has found that there is no evidence

Resp. App. 3

in the record to support this claim and the idea that any

conversations which were not recorded contained excul-

patory evidence is mere conjecture on the part of the

defendant.

The Supreme Court of Colorado in the case of People

in Interest of M.N., 761 P.2d 1124 (Colo. 1988), discussed at

great length the issue of governmental misconduct which

would be so outrageous as to warrant a dismissal of the

charges against the defendant as violative of due process.

In reviewing the Supreme Court’s discussion in those

cases, it is clear that the three reasons asserted by the

defendant discussed above do not rise to such a level,

and at the most, would only constitute factual matters

possibly relevant to the defendant's claim of entrapment.

A fourth and more troubling reason asserted by the

defendant is the claim that law enforcement officials

through the District Attorney’s office caused false and

purgered documents to be filed in the La Plata County

Court and that the undercover officer, Brent Pace, in his

role as the fictitious client named Colt Young, provided

false statements to the Court.

In its motion and brief, the defense states that, based

on People in the Interest of M.N., supra, the Court should

rule on the due process argument only after the trial and

only after the entrapment defense is rejected by the jury.

This Court can certainly be wrong, however, I do not read

the M.N. case to so state. The Court at Page 1131 of its

opinion distinguished between the outrageous govern-

mental conduct defense and the affirmative defense of

Resp. App. 4

entrapment, and stated that the due process issue is inter-

woven with the entrapment defense. It is clear the entrap-

ment defense involves questions of fact which are

resolved by the trier of fact, however, I see nothing in the

M.N. [sic] which indicates that the Supreme Court disap-

proves of the trial judge determining this motion prior to

trial. The Supreme Court reversed the District Court in

that case, but made no reference that I can see disapprov-

ing of the trial court’s procedure. Therefore, for better or

worse, the Court will enter an order relating to the defen-

dant’s motion to dismiss based on governmental miscon-

duct and the due process argument related to

governmental misconduct.

The activities in the M.N. case involved an under-

cover drug enforcement officer enrolled at a Montezuma-

Cortez high school. The undercover officer became

involved with a student named M.N. and gave the juve-

nile money to purchase marijuana. The undercover officer

also asked M.N. to steal tires and rims and car stereos.

The juvenile and the undercover officer were arrested so

that the juveniles were not aware that the undercover

officer was in fact a law enforcement officer. A few days

after the arrest, the undercover officer pursuaded the

juveniles to purchase additional marijuana. Thereafter,

delinquency petitions were filed concerning the juveniles.

At a hearing on the motion to dismiss, the trial court

found that the undercover officer violated C.R.S. 1973,

19-3-119 by inducing, aiding or encouraging a child to

violate the law. The District Court dismissed the petitions

and the Supreme Court reversed the dismissals.

Resp. App. 5

The fact scenario in the instant case as a result of the

preliminary hearing, the motions hearings and the evi-

dence adduced at said hearings, reveal that law enforce-

ment officers in La Plata County were trying to interdict

the drug traffic and placed an undercover officer, Brent

Pace, who went by the fictitious name of Colt Young, in

Durango, Colorado. The undercover officer frequented

certain establishments known to the police for their activ-

ities and in the course of several months became aware of

information which caused them to believe that defendant

Auld was possibly involved with drugs. In cooperation

with the La Plata County Sheriff’s Department, the

Durango Police Department and the District Attorney’s

Office, the undercover officer as Colt Young was arrested

in a public establishment, taken to the jail and booked on

charges of unlawfully carrying a concealed weapon and

possession of marijuana as misdemeanor offenses. The

defendant posted a surety bond on-September 6, 1988,

which bond was sworn to under oath in front of a Deputy

Clerk for the County Court, and subsequently filed in the

County Court for La Plata County. The District Attorney’s

office prepared a fictitious offense report and the District

~- Attorney himself prepared a misdemeanor complaint

charging the defendant with carrying a concealed

weapon and possession of marijuana as a misdemeanor

and caused the complaint to be filed in the La Plata

County Court.

When the defendant was arrested, he was brought

before the La Plata County Judge, Judge Patricia A. Hall,

and advised of his rights, the charges and the penalties

for which he was arrested and was questioned by the

Court about general information relating to his status and

Resp. App. 6

his bond. During the course of that Court appearance, a

transcript of which was introduced into evidence at the

hearings marked defendant’s Exhibit B, the undercover

officer as the fictitious Colt Young made numerous false

statements to the Judge. The next Court appearance was

on September 23, 1988, for the filing of charges, during

which the defendant Auld represented the fictitious Mr.

Young and entered a plea of not guilty and requested a

trial. Later, on October 11, 1988, the case was dismissed

by the District Attorney’s office.

I have set out the two basic fact scenarios of the M.N.

case and the instant case because the fact scenario in the

M.N. case and the cases discussed in the M.N. case all

involve conduct of law enforcement officers within their

own arena, that is the Executive Branch. The Supreme

Court in the M.N. case discussed numerous cases, most of

them Federal cases, which recognize that in a proper case,

the conduct of the government may be so outrageous as

to shock the conscience resulting in a dismissal. I cannot

find in any of those cases nor in the M.N. case itself

discussion relating to a situation in which the undercover

activities of law enforcement have crossed over from the

Executive Branch to the Judicial Branch. A genera! propo-

sition which seems to stem from the M.N. case is that as

iong as the undercover activity, even though it may

involve illegal activities on the part of the law enforce-

ment officers themselves, stays within the Executive

Branch, the courts will not interfere unless the conduct is

outrageous within the Executive Branch itself. The courts

have essentially recognized that law enforcement is enti-

tled to some degree to fight fire with fire and as stated on

Page 1131 of the M.N. case:

Resp. App. 7

“It is the duty and role of the District Attorney,

not the Judge, to decide whether justice requires

that a particular individual should be charged

with violating a criminal statute. A Judge does

not have the power to charge an individual! with

violation of a criminal statute... ”

Therefore, unlawful activities performed by undercover

officers in the performance of their duties does not neces-

sarily subject the officers to prosecution, particularly

where the undercover activity is confined to their own

arena, the Executive Branch.

The problem in this case is the involvement of the

Court system and judiciary as an involuntary extension

of the undercover activities of the law enforcement offi-

cers. Defendant's Exhibit G is a surety bond filed with the

Court for La Plata County in Case No. 88 M 291 signed by

the fictitious Colton Young and under oath on September

6, 1988, in front of a Deputy Court Clerk. Defendant's

Exhibit H is the complaint against the fictitious Colton

Young charging him with unlawfully carrying a con-

cealed weapon and the mesdemeanor [sic] marijuana

charge sworn under oath on September 19, 1988, by Tony

James, a law enforcement officer and notarized by the

wife of the District Attorney, Mary Katherine Reichman.

This document was filed in the La Plata County Court

Case Number 88 M 291. Defendant’s Exhibit B is the

transcript of proceedings which took place in the La Plata

County Court for the fictitious Colton Young on Septem-

ber 13, 1988, and on September 23, 1988. This Court is not

aware of any case or statute which sanctions the filing of

false and perjured documents in an official court proceed-

ing as part of an undercover operation.

Resp. App. 8

C.R.S. 1973, 18-8-503, Perjury in the Second Degree,

18-8-502, Perjury in the First Degree, and 18-8-504, False

Swearing are all offenses under the Colorado Criminal

Code, and the definitions of “materially false statement”

and “Oath” are defined in 18-8-501. All of these offenses

to some degree may have occurred in the La Plata County

Court Case No. 88 M 291 against the fictitious Colton

Young. The District Attorney, Mr. Vic Reichman, testified

on cross-examination that he prepared the complaint

which was filed in 88 M 291, but thought it was alright

because the complaint was part of their undercover oper-

ation and was designed to give their informant credibility

since the defendant in the instant case was an attorney

himself. On cross-examination, Mr. Reichman stated that

that was his motive, however, the intent was to file a false

document with respect to the fictitious Colton Young and

that there was no intent, in reality, to actually charge the

fictitious Colton Young with “real” criminal charges.

Sergeant Ball, who was in charge of the undercover

operation, testified at the hearings that he did not intend

for the undercover operation to get as far as it did, and

was not aware that false and fictitious documents would

be filed with the court, and was not aware that the

undercover officer as the fictitious Mr. Young would

make false statements to the Judge in open court. The

undercover agent himself testified that he did not think

the operation would go so far, but felt that he had to

make those false statements when he found himself in

court so as not to blow his cover. Additionally, defen-

dant’s Exhibit J, a letter dated November 2, 1988, from the

District Attorney to the Sheriff’s office, Mr. Reichman, in

attempting to persuade law enforcement officers to

Resp. App. 9

refrain from any further procurement activity with

respect to the defendant Auld, states that:

”

... if you or any other officer under your

direction persists in pressuring Mr. Auld

directly or indirectly to assist law enforcement, |

will immediately request the appointment of a

special prosecutor and divorce myself fully from

any other LEADS activities. I regret having to

take such a firm stand, but this seeming

approach of ‘the ends justify the means’ is of

great concern to me... ”.

It seems to this Court, based upon the testimony of

the law enforcement officer in charge of the undercover

operation, the undercover officer, and the District Attor-

ney, that they themselves feel their activities in involun-

tarily involving the Court in their undercover operations

is highly questionable. The case of United States v. Omni

Inter. Corp., 634 F. Supp. 1414 (D) Md. 1986 [sic], discusses

at great length the idea of governmental misconduct, and

the dismissal of charges based on governmental miscon-

duct. That case involved an IRS case against the defen-

dant concerning tax fraud and tax evasion. After a long

discussion, the court in that case dismissed the charges

against the defendant because of outrageous govern-

mental misconduct. The court there rejected the defense

argument that breaches of the attorney/client privileges

amounted to governmental misconduct, however, the

court did dismiss based on three general categories of

concern found at Page 1423, specifically altered and cre-

ated documents, incorrect testimony before the court

along with criminal allegations of perjury and obstruction

of justice, and what the court called a disheartening lack

of candor with and testimony before the court. Although

Resp. App. 10

the testimony in that particular case occurred over a

several month period of time, the court at Page 1428

stated:

“The second major area of concern to the Court

involves the repeated untrue and incorrect testi-

mony which occurred during the course of the

proceedings. The impact of such testimony to

this Court, setting [sic] as fact finder for the

evidentiary hearing, cannot be underestimated.

Based on the erroneous testimony given, as

uncovered during the hearing, the Court simply

cannot put its complete trust and confidence in

certain government witnesses.”

At Page 1432, the court stated:

“The motive involved in this case is irrelevant to

the Court’s disposition of the matter. The critical

fact is that there was a considerable amount of

false, wrong testimony... ”

The third area of the court’s concern may be described as

lack of candor. It is clear beyong [sic] any doubt that

misrepresentations were made to the court, from the

beginning of the evidentiary hearing. Misrepresentations

occurred in colloquies with the court and in testimony by

witnesses. The court then goes on beginning at Page 1436

to wrestle with the question of what sanctions should be

imposed. The court begins by saying at Page 1436:

“The issue of dismissal of the indictment is not

an easy one. The use of the supervisory power

supports three institutional goals: Deterring ille-

gal conduct by government officials, protecting

and preserving the integrity of the judicial pro-

cess, and implementing a remedy for violation

of recognized rights.”

! Resp. App. 11

The court then goes on to wrestle with the question of

whether or not actual prejudice to the defendant must be

shown in order to dismiss the charge, and concludes

under the facts of that case that the misconduct was

extreme, flagrant and that the misconduct was not iso-

lated, but long standing. The court stated at Page 1438 of

its opinion that:

“Decisions emphasize the unifying premise in

all of the supervisory power cases that although

the doctrine operates to vindicate a defendant’s

rights in an individual case, it is designed and

invoked primarily to preserve the integrity of

the judicial system... ”.

Utilization of the supervisory power remains a harsh

ultimate sanction, but must be used for “conduct that

shocks the conscience.” The court has particularly

stressed the need to use the supervisory power to prevent

the federal courts “from becoming accomplices to such

misconduct.” The court finally rejects the prosecution

argument that all of this was “harmless error” and dis-

missed the indictment.

The facts in the Omni case are certainly more aggre-

gious then [sic] is present here, however, the question

remains to be settled of where this line of demarcation is.

How far can the Executive Branch involve the Judicial

Branch, whether knowingly or unknowingly, as an

accomplice to its undercover operations. The courts,

including the Supreme Court of the State of Colorado

have long recognized the need and the desirability of law

enforcement to conduct undercover operations for the

protection of society and certainly no one quarrels seri-

ously with that proposition. However, as stated before,

Resp. App. 12

most of the cases deal with activities within the Executive

Branch itself, that is, the law enforcement operations

themselves, and do not involve cases in which the Judi-

cial Branch is involved. If there is any separation of

powers and any independence of the branches of govern-

ment, then it cannot be that a law enforcement officer or a

district attorney decides when and to what extent the

judiciary becomes involved, knowingly or unknowingly,

in its undercover operations. This is particularly so when

the courts are supposed to be the one arena of impar-

tiality favoring neither the prosecution nor the defense.

The Illinois case of In Re Friedman, 392 N.E. 2d 1333

(1979) involved a disciplinary proceeding before the

Supreme Court of Illinois on facts somewhat similar here.

The respondent in that case is Colorado’s equivalent of a

district attorney who had participated in an undercover

operation which involved false court documents and false

testimony, although in one of those instances the court,

after the hearing, was advised of the circumstances sur-

rounding the case. The respondent in that case argued at

Page 1334 of the opinion that:

“The courtroom is not immunized by the code

of professional responsibility from investigation

methods otherwise lawful and ethical and that

perjury and the secreting of witnesses are neces-

sary methods for the successful investigation

and prosecution of corrupt attorneys, whose

stealth makes less deceptive investigatory tech-

niques ineffective.”

The respondent further argued that his loftiest motive

negates any technical violation of the Code of Profes-

sional Responsibility. The court goes through an analogy

Resp. App. 13

of the ABA Standards for Professional Conduct such as

DR7-109 and the court found at Page 1335 that the

respondent’s conduct deviated from the disciplinary

rules. The court states at page 1335:

“He (the respondent) argues that to impose dis-

cipline for his conduct would give more

emphasis to the abstract concept of the court-

room’s sanctity then [sic] to the substances of an

honest legal system. While respondent asserts

that he is not arguing that the end justifies the

means, we so construe his argument and find it

unacceptable. The integrity of the courtroom is

so vital to the health of our legal system that no

violation of that-integrity, no matter what its

motivation, can be condoned or ignored.”

The court goes on to quote Mr. Justice Brandeis in

Olmstead v. United States, 277 U.S. 438 (1928) as follows:

“Decency, security and liberty alike demand

that governmental officials shall be subjected to

the same rules of conduct that are commands to

the citizen. In a government of laws, existence of

the government will be imperiled if it fails to

observe the law scrupulously. Our government

is the potentate, the omni-present teacher. For

good or for ill, it teaches the whole people by its

example. Crime is contagious. If the government

becomes a law breaker, it breeds contempt for

law; it invites every man to become a law unto

himself; it invites anarchy. To declare that in the -

administration of the criminal law the end justi-

fies the means - to declare that the government

may commit crimes in order to secure the con-

viction of a private criminal - would bring terri-

ble retribution. Against that pernicious doctrine,

this court should resolutely set its face.”

Resp. App. 14

The court further goes on to state that because the

respondent acted without guidance of prescedent [sic] or

settled opinion (which sounds exactly like this case) the

Supreme Court of Illinois concluded that no sanctions

should be imposed.

In agonizing over this decision, this Court concludes

that the rationale in the Omni case and the Friedman case

should control. It would be far easier for this Court to say

that there was no actual resulting prejudice to the defen-

dant and therefore deny the requested dismissal, how-

ever, the public has a right to demand and to expect that

the courts will do their utmost to remain impartial and to

promote the public’s confidence in the integrity of the

courts. The courts should not, and this Court certainly

does not, sanction the filing of false and fictitious docu-

ments with the Court nor the securing of false and fraud-

ulent misrepresentations to the Court regardless of the

motive. In my mind, this is a clear line of distinction

which separates this case from the M.N. case and those

cases discussed in the M.N. case, and constitutes an

impermissible taint upon the integrity and impartiality of

the courts. Therefore, defendant’s motion to dismiss for

governmental misconduct is granted.

* * *

Resp. App. 15

For the reasons stated above, the Court hereby dis-

misses the Complaint against the defendant, and vacates

the trial date of May 22, 1989.

DATED this 12 day of May, 1989.

BY THE COURT

/s/ Richard J. Brown

Richard J. Brown,

Acting District Court Judge

xc: Haddon

Cross