Petition for Writ of Certiorari — Ofshe v. United States

87-407

Supreme Court, U.S.

StL ED

SEP 8 1987

JOSEPH F. SPA IE, 4%

CASE NO. ee CLERK

in the

of the

United States

OCTOBER TERM, 1986

. RONALD ARTHUR OFSHE

Petitioner

US.

UNITED STATES OF AMERICA

Respondent

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals, Eleventh Circuit

BRIEF OF PETITIONER ON JURISDICTION

MELVIN S. BLACK

Grove Forest Plaza, Suite 202

2937 S.W. 27th Avenue

Miami, Florida 33133

Attorney for Petitioner

(305) 443-1600

QUESTIONS PRESENTED

I.

WHETHER PREJUDICE SHOULD BE PRESUMED

WHEN THE INVASION OF THE ATTORNEY-

CLIENT RELATIONSHIP CONSISTS OF THE

GOVERNMENT ITSELF CREATING A CONFLICT

BY TURNING A DEFENSE ATTORNEY INTO A

GOVERNMENT INFORMANT AGAINST HIS OWN

CLIENT AT A TIME WHEN THAT ATTORNEY IS

REPRESENTING THE CLIENT IN A PENDING

CRIMINAL CASE?

Il.

WHETHER IT IS OUTRAGEOUS GOVERNMENT

MISCONDUCT WHEN A PROSECUTOR USES A

DEFENSE ATTORNEY AS A CONFIDENTIAL

INFORMANT AGAINST HIS CLIENT WHILE THAT

DEFENSE ATTORNEY IS REPRESENTING THAT

CLIENT IN A PENDING - CRIMINAL

PROSECUTION?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2... oo ee ake

TABLE OF CONTENTS .....-------+se03: il

TABLE OF AUTHORITIES. ....-.-----++-+> 1V

OPINION BELOW .......-- <5 =. 48s eee 2

Bhi hcl 8 tg yt, Serato oon Oo 2

CONSTITUTIONAL

PROVISIONS INVOLVED .....-----++++++> 2

STATEMENT OF THE CASE......----++++> 3

le

TABLE OF CONTENTS—(Continued)

REASONS FOR GRANTING THE WRIT ..... 8

IT IS IMPERATIVE THAT THE SANCTION

OF DISMISSAL BE PRESCRIBED AS THE

REMEDY TO DETER PROSECUTORS

FROM CONVERTING DEFENSE

ATTORNEYS INTO INFORMANTS

AGAINST THEIR OWN CLIENTS. THIS

QUESTION SHOULD BE DECIDED

BECAUSE IT IS VITAL TO ALL CLIENTS’

RELIANCE UPON THE INDEPENDENCE

AND LOYALTY OF DEFENSE COUNSEL.

THE PAUCITY OF SUPREME COURT

DECISIONS DEFINING OUTRAGEOUS

GOVERNMENTAL MISCONDUCT

LEAVES LOWER COURTS WITHOUT

GUIDANCE.

UNDER THE FACTS OF THIS CASE, THE

COURT OF APPEALS MADE AN

ERRONEOUS APPLICATION OF LAW IN

REQUIRING A DEMONSTRATION OF

PREJUDICE BY THE DEFENDANT WHEN

HIS COUNSEL IS LADEN WITH

CONFLICTS CREATED BY THE

GOVERNMENT.

I ee ce kee ta ce ved wees 13

il

TABLE OF AUTHORITIES

Page

Cuyler v. Sullivan,

Oe Oe ee CO ova ss Boos ova cw 11

Strickland v. Washington,

ee tls ee MAE) on sk ek. 9,10, 11

United States v. Crow Dog,

532 F.2d 1182 (8th Cir. 1976) ......... 12

United States v. Harnage,

F.Supp. ____, Case No. 86-CR-239

eae. aune 10, IO6T) cis. so Serie. 9

United States v. Houghton,

904 F.2d 1219 (ist Cir. 1977) ......... 12

United States v. McCord,

909 F.2d 334 (D.C. Cir. 1974) ......... 12

United States v. Morrison,

a OEY | 5G boon vc uo dua’ eo 7, 20; 81

United States v. Ofshe,

817 F.2d 1508 (11th Cir. 1987) ........ 2

Weatherford v. Bursey,

ee OS | yy | re areas 11

SENN OT

CASE NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1986

RONALD ARTHUR OFSHE

Petitioner

US.

UNITED STATES OF AMERICA

Respondent

On Petition For a Writ of Certiorari To The

United States Court of Appeals, Eleventh Circuit

BRIEF OF PETITIONER ON JURISDICTION

Petitioner, Ronald Arthur Ofshe, respectfully prays

that a writ of certiorari issue to review the judgment,

opinion, and order on rehearing of the United States

Court of Appeals for the Eleventh Circuit entered in

Case No. 86-5351, on June 1, 1987 and July 9, 1987, |

which affirmed the judgment of conviction and sentence —

of the United States District Court of the Southern

District of Florida.

OPINION BELOW

The opinion of the United States Court of Appeals, |

Eleventh Circuit, denying the defendant’s direct appeal

is reported as United States v. Ofshe, 817 F.2d 1508 (11th

Cir. 1987). (A. 1).' The order of the Magistrate denying

the defendant’s Motion to Dismiss Indictment for

Violations of Due Process and Right to Counsel, as

adopted by the trial court, is unreported. That order is

reprinted in the Appendix to this Petition. (A. 24-41).

JURISDICTION

The jurisdiction of this Court is invoked pursuant

to the provisions of Rule 17(a) and (c) of the Rules of the

Supreme Court and 28 U.S.C. §1254(1). This petition

is filed within the authorized time period following the

Eleventh Circuit’s Order on Rehearing. See Supreme

Court Rule 20.1 and 20.4.

CONSTITUTIONAL PROVISIONS INVOLVED |

United States Constitution, Fifth Amendment:

No person shall be. . . deprived of life, liberty,

or property, without due process of law. . .

‘The symbol “A”’ is used to designate the Appendix to this

Petition.

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right. . . to have the assistance of

counsel for his defense.

STATEMENT OF THE CASE

A Superceding Indictment was filed on March 13.

1985. (R-1-57).2, A Motion to Dismiss Indictment for

Violations of Due Process and Right to Counsel and

Memorandum of Law was filed on July 15, 1985.

(R-1-76-77).

An evidentiary hearing on the Motion to Dismiss

for Violations of Due Process and Right to Counsel was

held on October 5, 1985. The Magistrate recommended

denial of the Motion to Dismiss in a Review and

Recommendation. (R-2-87). The defendant filed a

Petition to Set Aside the Magistrate’s Review and

Recommendation. (R-2-90). The District Judge entered

an Order Affirming and Adopting Review and

Recommendation, which was filed on December 9, 1985.

(R-21-89). The defendant entered a conditional plea on

February 11, 1986, reserving the right to appeal the

denial of his Motion to Dismiss. (R-2-99). A timely Notice

of Appeal was filed on May 19, 1986. (R-2-101).

The facts giving rise to the Motion to Dismiss for

Violations of Due Process and Right to Counsel are set

>The record references in this Petition are to the Record on

Appeal which was before the Eleventh Circuit and which has been

returned to the United States District Court for the Southern

District of Florida. This record is available for transmittal to this

Court should the Court so order.

forth in some detail in the opinion of the United States

Court of Appeals, 817 F.2d 1508 (11th Cir. 1987).

In February, 1983, the defendant, already

represented by Florida counsel, retained Marvin Glass

as co-counsel. Mr. Glass was, at that time, an attorney

practicing in Chicago, Illinois. (SR-1-108). Glass

assumed a lead counsel position with respect to

communications with the prosecution and plea

negotiations. (SR-1-108). As noted by the Magistrate,

Glass directed the actions of co-counsel as to certain

pretrial tactics and strategy, including continuance of

trial, waiver of speedy trial, and waiver of Indictment.

Co-counsel obeyed these directions. (A-29).

Around April 19, 1983, at the same time he was

counsel for Ronald Ofshe, Marvin Glass learned that he

was the target of a Chicago federal investigation

regarding a continuing criminal enterprise. In wn effort

to avoid indictment altogether, or at least to reduce his

own criminal liability, Glass offered to cooperate with

the United States Attorney in Chicago in identifying

and investigating suspected drug traffickers.

(SR-1-47-53). Glass, on or about June 8, 1983, told

Assistant United States Attorney Scott Turow and the

FBI agents from Chicago that he was currently

representing Ofshe in a federal case in Florida, that

Ofshe spoke to him about a money-laundering scheme,

and that Ofshe had requested Glass to find a buyer for

‘a ton of marijuana.” (SR-1-57-59). The FBI agents from

Chicago, acting on instructions from the Chicago United

States Attorney, went to Miami, Florida, in June of 1983

and placed a NAGRA body-bug on attorney Marvin

Glass and conducted a surreptitious electronic

surveillance of the conversation Glass had with his

client Ofshe on June 14, 1983. This conversation

included general discussions about an introduction

Glass wanted to arrange for Ofshe so that Ofshe could

purchase marijuana on credit. The conversation also

included a brief discussion of the timing and likelihood

of success for Ofshe’s motion to suppress in the pending

Florida federal case. (R-1-76).

This surveillance was conducted without either

knowledge or approval of the United States Attorney’s

Office for the Southern District of Florida. Indeed, the

only approval had been secured from the United States

Attorney for the Northern District of Illinois. The

Government knew that Marvin Glass was acting as

Ofshe’s attorney at the time of the body recording but

decided to undertake the electronic surveillance

regardiess. |

Attorney Glass was not told at the time of the

electronic surveillance that he had to withdraw from

the representation of Ofshe. (SR-1-65). Prosecutor Turow

acknowledged that he did not tell Mr. Glass to withdraw

prior to June 14, the date of the electronic surveillance.

(SR-1-65-66). Turow merely considered, but apparently

did not communicate to Glass, whether Glass would be

permitted to complete the investigation of Ofshe prior

to withdrawing from representation of Ofshe. (SR-1-67).

Glass told Turow that the pending case was about to

be dismissed and later would be refiled. Turow did

nothing to verify Glass’ statement regarding the

dismissal of the case. Indeed, the FB] agent learned from

the tape recording of the surveillance that the case was

active and pending imminent trial at the very same time

that Glass was working as a confidential informant

against his client, Ronald Ofshe. (R-1-76; SR-1-66-69).

——

It was not until August 30, 1983, some two and one-

half months later, that the United States Attorney for

the Northern District of Illinois instructed confidential

informant Glass to withdraw as attorney for the

petitioner. (SR-1-70). Only after August 30, 1983, was

Glass repeatedly told to withdraw. Only when he still

did not withdraw was the United States Attorney for

the Southern District of Florida finally informed in

November, 1983 of the conflict of counsel in the pending

case. (SR-1-70).

In February, 1984, Judge Gonzalez, who was

presiding over Ofshe’s case, learned that Glass had been

enlisted as an informant against his client. That Judge

then ordered the United States Attorney to disclose this

fact to the defendant. Glass appealed Gonzalez’ decision,

and did not move to withdraw until April, 1984. Even

then, he continued to hide the fact that he was working

as an informant, with Governmental consent, until

February, 1985. Since the Court file was sealed pending

Glass’ appeal, defendant Ofshe could not discover the

reasons for Glass’ withdrawal or even the fact that an

appeal taken by Glass. 817 F.2d at 1511. After the

disclosure of the actions of the informant/attorney Glass

to the defendant in February, 1985, the defendant filed

a Motion to Dismiss, which is the subject matter of this

Petition.

The Court of Appeals rejected the defendant’s

contention that the governmental conduct was so

outrageous as to require dismissal under the Fifth

Amendment. The Court held:

After considering the totality of the

circumstances presented in the case, we hold

that the actions of the government were not so

outrageous as to ‘shock the universal sense of

justice.’ Therefore, the district court’s denial

of the motion to dismiss is affirmed. In reaching

this decision, however, we must stress two

points. First, our holding is based upon the

unique facts of this case. Second, we do not

condone the government’s use of criminal

defense attorneys as informants against their

clients.

In a footnote, the court noted that while they did

not find the government’s conduct sufficiently

outrageous to warrant the dismissal of the Indictment,

we do believe that Glass’ and Turow’s conduct

was reprehensible. Because the district judge

is more familiar with the attorneys’ conduct,

we assume he will refer this matter this matter

to The Attorney Registration and Disciplinary

Commission .

The Court of Appeals, in its discussion of the Fifth

Amendment issue, emphasized that the conduct of the

investigation was designed to obtain information

regarding Ofshe’s subsequent criminal conduct and not

used to discover defense strategy in the Florida case.

The Court further found that, because Florida co-counsel

provided zealous representation, Ofshe was _ not

prejudiced in his defense.

Likewise, in rejecting the contention that the

indictment should be dismissed because of the invasion

of the attorney/client privilege, the Court noted that this

Court’s opinion in United States v. Morrison, 449 U.S.

361 (1981) squarely held that, absent demonstrable

prejudice, dismissal was inappropriate as a remedy for

such a Sixth Amendment violation. The Court of

Appeals found no demonstrable prejudice.

REASONS FOR GRANTING CERTIORARI

IT IS IMPERATIVE THAT THE SANCTION

OF DISMISSAL BE PRESCRIBED AS THE

REMEDY TO DETER PROSECUTORS

FROM CONVERTING DEFENSE

ATTORNEYS INTO INFORMANTS

AGAINST THEIR OWN CLIENTS. THIS

QUESTION SHOULD -BE DECIDED

BECAUSE IT IS VITAL TO ALL CLIENTS’

RELIANCE UPON THE INDEPENDENCE

AND LOYALTY OF DEFENSE COUNSEL.

THE PAUCITY OF SUPREME COURT

DECISIONS DEFINING OUTRAGEOUS

GOVERNMENTAL MISCONDUCT LEAVES

LOWER COURTS WITHOUT GUIDANCE.

UNDER THE FACTS OF THIS CASE, THE

COURT OF APPEALS MADE AN

ERRONEOUS APPLICATION OF LAW IN

REQUIRING A DEMONSTRATION OF

PREJUDICE BY THE DEFENDANT WHEN

HIS COUNSEL IS LADEN WITH

CONFLICTS CREATED BY THE

GOVERNMENT.

1. This Court has not heretofore commented on the

limits of acceptable prosecutorial conduct in recruiting

a defense attorney to be an informant against his own

client while the attorney is actively representing the

client in a pending case. Although the court of appeals

indicated that it would not “‘condone”’ such conduct, it

provided no remedy to deter future prosecutors from that

conduct. This case is not an isolated incident where

prosecutors recruited defense attorneys as informants

against their own clients. See United States v. Harnage,

____ F.Supp. , Case No. 86-Cr-239 (D.Col. June 10

1987). If prosecutors are free to use defense attorneys

as informants against their clients, irreparable and fatal

damage will be done to the delicate balance between the

functions of the defense and the prosecution in making

the criminal justice system werk. A defendant’s attorney

has a clearly defined and crucial role in the

administration of justice, to-wit: to provide advocacy to

the citizen accused in the adversary system of trial. That

role is literally destroyed when the defense attorney

becomes an agent of the prosecution.

Additionally, such a prosecutorial practice does

violence to the trust that the citizens of this country can

posit in the attorney/client relationship. Given the

magnitude of the shock waves which reach the very

foundations of the court system, it is clear that such

practice must be deemed outrageous.

2. Strickland v. Washington, 466 U.S. 693 (1984),

was the landmark case addressing claims of

ineffectiveness of counsel. In those general situations,

Strickland required that the defendant make a

preliminary showing of some prejudice. However, the

Strickland opinion took care to distinguish general

ineffectiveness claims of the type it was addressing from

the different situations involving claims of ineffective

assistance based on a conflict of interest. For purposes

of deciding claims of ineffectiveness of counsel, there is

a presumption of prejudice when counsel had an actual

conflict of interest.

One type of actual ineffectiveness warrants

a similar, though more limited, presumption

of prejudice. In Cuyler v. Sullivan, 446 U.S., at

345-350, 100 S.Ct., at 1716-1719, the Court

held that prejudice is presumed when counsel

is burdened by an actual conflict of interest. Jn

those circumstances, counsel breaches the duty

of loyalty, perhaps the most basic of counsel’s

duties. Moreover, it is difficult to measure the

precise effect on the defense of representation

corrupted by conflicting interests. Given the

obligation of counsel to avoid conflicts of

interest and the ability of trial courts to make

early inquiry in certain situations likely to give

rise to conflicts . . . it is reasonable for the

criminal justice system to maintain a fairly

rigid rule of presumed prejudice for conflicts of

interest.

Because the effect of attorney disloyalty and lack

of zealousness it is difficult to perceive or quantify, this

Court has deemed it to be inappropriate to require a

defendant to prove actual prejudice in order to be

entitled to relief from conflict laden counsel. Strickland,

supra. For the same reasons, it is inappropriate to apply

the broad and general rule of Morrison, requiring a

demonstration of prejudice by the defendant prior to

dismissal for government invasion of the attorney/client

relationship. When the government’s intentional

invasion of the attorney/client relationship results in

counsel becoming disloyal to his client, the invasion is

10

——————————

Perera

ASTRA IED Spon eS er mee

ee

palpably different from government surveillance of

attorney/client communications, viz. Weatherford v.

Bursey, 429 U.S. 545 (1977) or government degrading

of an attorney in his client’s eye, viz. Morrison, supra.

Thus, when the government violates a defendant’s right

to counsel by intentionally and surreptitiously creating

a serious conflict between the attorney and client, it

creates such a substantial threat of prejudice that

prejudice must be presumed. Therefore, the Court of

Appeals erroneously applied Morrison and erroneously

disregarded Strickland’s reaffirmation of Cuyler uv.

Sullivan, 446 U.S. 335 (1980) in deciding that the

defendant was not entitled to dismissal for violation of

his Sixth Amendment privilege because there was no

demonstrable prejudice.* This is a serious error in the

legal reasoning in the opinion below. The Court of

Appeals glossed over the major issue in the case— it does

not matter what prejudice the defendant could prove.

The error was fundamental and of far greater import

than the incarceration of one defendant. No client

should ever have to fear that his own lawyer intends

to harm him for that lawyer’s own personal gain.

3. The Court of Appeals relied strongly on the

absence of demonstrable prejudice to the pending

prosecution of defendant Ofshe in rejecting both the due

process and right to counsel complaints of the petitioner.

In its discussion of the Fifth Amendment claim, the

Court noted:

3It is important to note that Strickland was decided after

Morrison and Weatherford. Thus, Strickland demonstrates that the

presumption of prejudice for conflict laden counsel survived the

Morrison ruling.

|

Therefore, the invasion of the attorney/client

relationship produced no evidence against

Ofshe. More importantly, . . . Ofshe was nof

prejudiced in his defense. Had there been

demonstrable evidence of prejudice, we would

be compelled to reverse. (Emphasis in original.)

817 F.2d at 1516.

In this regard the Court of Appeals committed an

error of law in rejecting the outrageous governmental

misconduct claim under the Fifth Amendment. This

requirement of prejudice as grounds for dismissal on

Fifth Amendment due process claims is erroneous since

‘‘serlous prosecutorial misconduct may so pollute a

criminal prosecution as to require dismissal of the

indictment . . . without regard to prejudice of the

accused.”’ United States v. McCord, 509 F.2d 334 (D.C.

Cir. 1974). See also, United States v. Crow Dog, 532 F.2d

1182 (8th Cir. 1976).

The dismissal of an indictment because of

deliberate governmental misconduct is used as

a prophylactic tool for discouraging future

actions of the same nature. Elkins v. United

States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4

L.Ed.2d 1669 (1960)...

United States v. Houghton, 554 F.2d 1219 (1st Cir. 1977).

12

CONCLUSION

This Court is therefore urged to accept this case in

order to settle the important question of Federal law

regarding the sanctions to be imposed for governmental

misconduct in recruiting defense attorneys as

confidential informants against their client and to

correct the errors of law contained in the opinion of the

Court of Appeals.

Respectfully submitted,

MELVIN S. BLACK

Grove Forest Plaza, Suite 202

2937 S.W. 27th Avenue

Miami, Florida 33133

Attorney for Petitioner

(305) 443-1600

13

Appendix

UNITED STATES of America,

Plaintiff-Appellee,

Ronald Arthur OFSHE,

Defendant-Appellant.

No. 86-5351.

United States Court of Appeals,

Eleventh Circuit.

June 1, 1987.

After denial of a motion to suppress and a motion

to dismiss in the United States District Court for the

Southern District of Florida, No. 82-6129 CR-JAG, Jose

A. Gonzalez, Jr., J., defendant entered a conditional plea

of guilty and appealed from the order denying the

motion to dismiss and to suppress evidence. The Court

of Appeals, Atkins, Senior District Judge, sitting by

designation, held that: (1) search warrant was properly

issued and executed, notwithstanding that it did not

mention informant’s criminal record or incarceration,

that it was directed to judge who issued warrant, and

that it named only one business out of seven located in

multiple use commercial buildings; (2) defendant was

not prejudiced as to his representation by Government’s

placing of ‘‘body bug’’ on his attorney and

surreptitiously monitoring conversation between

attorney and defendant concerning investigation in

Illinois, so that dismissal of case was not required; and

(3) placing of “body bug” on attorney and surreptitiously

App. 1

monitoring conversation with defendant was not so

outrageous as to violate Fifth Amendment.

Affirmed.

1. Searches and Seizures —112

Insignificant and immaterial misrepresentations or

omissions will not invalidate a search warrant. U.S.C.A.

Const.Amend. 4.

2. Drugs and Narcotics —188

Omission of informant’s six prior convictions and

incarceration awaiting trial on charges of conspiracy to

traffic methaqualone when purchase of cocaine was

made at premises to be searched, when considered with

all information contained in search warrant application,

did not invalidate warrant: informant had furnished

valuable information on at least 14 occasions during

prior 12 years and, on each occasion, arrest and/or

seizure occurred, and informant stated that he had been

in office in question at least once a month for previous

three years and that he had observed cocaine in one or

both of two safes on each occasion. U.S.C.A.

Const.Amend. 4.

3. Searches and Seizures —142

Search warrant can be executed by person to whom

warrant is directed or by any officer authorized by law

to execute search warrants. U.S.C.A. Const.Amend. 4.

4. Searches and Seizures —127

That search warrant was directed to United States

District Judge who issued warrant, and that warrant

commanded judge to search premises, was mere

technicality and did not require invalidation of warrant.

U.S.C.A. Const.Amend. 4.

5. Searches and Seizures —126

That warrant for search named only one business

located in multiple use commercial building, which

contained seven offices, did not require that warrant be

voided; of seven offices in building, only one office was

used by business separate from business listed in

warrant, and agents followed exactly authority of

warrant in that they searched only the two safes and

the premises of the businesses listed in the warrant.

U.S.C.A. Const.Amend. 4.

6. Indictment and Information —144.1(1)

Defendant was not prejudiced by Government’s

placing of ‘“‘body bug’’ on his attorney and

surreptitiously monitoring conversation between

attorney and defendant in connection with Illinois

investigation, so that dismissal of case was not required;

nothing pertinent to Florida case against defendant was

communicated to United States Attorney assigned to

case, so that no Sixth Amendment violation occurred,

and defendant’s second attorney bad no conflict of

interest and provided effective representation at all

times after prosecution was initiated. U.S.C.A.

Const.Amend. 6.

App. 3

7. Indictment and Information —144.1(1)

Defendant must be prejudiced before indictment

may be dismissed for violation of attorney-client

privilege. U.S.C.A. Const.Amend. 6.

8. Constitutional Law —257.5

To constitute constitutional violation, law

enforcement technique must be so outrageous that it is

fundamentally unfair and shocking to universal sense

of justice mandated by due process clause of Fifth

Amendment. U.S.C.A. Const.Amend. 5.

9. Constitutional Law —257.5

Government's conduct in invading communications

between defendant and defendant’s first attorney by

placing “‘body bug” on attorney and surreptitiously

monitoring conversation between defendant and his

attorney regarding Illinois investigation was not so

outrageous that it violated defendant’s Fifth

Amendment due process rights; no evidence was

provided to Assistant United States Attorney

prosecuting defendant in Florida action, and defendant’s

second attorney provided zealous representation so that

defendant was not prejudiced in his defense; however,

conduct of defendant’s first attorney and United States

Assistant Attorney was reprehensible. U.S.C.A.

Const.Amend. 5.

Appeal from the United States District Court for the

Southern District of Florida.

App. 4

Before TJOFLAT and VANCE, Circuit Judges, and

ATKINS*, Senior District Judge.

ATKINS, Senior District Judge:

After entering a conditional plea of guilty, Ofshe

appealed from an order denying his motion to dismiss

the Indictment and an order denying his motion to

suppress evidence. We find that (a) appellant’s

constitutional rights were not violated by the

government's misconduct, and (b) the motion to suppress

was properly denied. Thus, we AFFIRM.

I. STATEMENT OF FACTS

On or about December 2, 1982, Agent Sternaman,

Drug Enforcemeni Administration (DEA), applied to the

Honorable Norman Roettger for a warrant to search the

premises at 2216 S.W. 60th Terrace, Miramar, Florida. '

Upon review, Judge Norman C. Roettger issued the

warrant; unfortunately, it was also directed “To

Honorable Norman C. Roettger, United States District

Judge,” and commanded him to search the premises

within 7 days. On December 3, 1982, federal agents

“Honorable C. Clyde Atkins, Senior U.S. District Judge for the

Southern District of Florida, sitting by designation

‘After the warrant was issued, the agents learned that the

premises were subdivided into separate offices containing unrelated

businesses. However, all seven of the rooms shared a common

entrance, a common receptionist, and a central mail delivery. Only

one room was used by a tenant other than Fed-Aire or Appliance

King. Moreover, the telephone in Ofshe’s office was subscribed to

by Fed-Aire of Florida, the business described in the search

warrant.

App. 5

executed a search based upon this warrant at 2216 S.W.

60th Terrace, Miramar, Florida, and found four and one-

half pounds of cocaine in a safe located in appellant’s

office. Along with the cocaine, the agents found other

drugs and certain documents which detailed appellant’s

drug trafficking. In addition, the agents found other

evidence, outside the safe, throughout the office.

Agent Sternaman had no direct knowledge or

information regarding any illegal activities on the

premises. Instead, he relied upon information supplied

to him by another agent, Special Agent Thomas L.

Chapman, who worked for the North Carolina Office

Bureau of Alcohol, Tobacco & Firearms (ATF). Like

Sternaman, Agent Chapman had no direct knowledge

of any illegal activities. Rather, this agent obtained

information from an unnamed informant who informed

Chapman that he had obtained an unspecified amount

of cocaine from an unspecified person in an une -vified

manner from an office inside the premisc. on an

unspecified date.

Agent Sternamen’s application for a search warrant

failed to inform Judge Roettger that the confidential

informant had six prior convictions and was

incarcerated and awaiting trial on charges of conspiracy

to traffic methaqualone. The government later disclosed

the identity of the confidential informant, Junior

Gambill, when he was to be utilized as a witness. This

disclosure included a recitation of his prior felony

convictions.

In December, 1982, appellant Ofshe was arrested in

Miramar, Florida, for possession with intent. to

distribute cocaine. He retained the services of Mel

App. 6

Black, Esquire, who handled the bond hearing,

arraignment, initial discovery review and the

preparation of a motion te suPPress. Mr. Black still

represents Ofshe.

In February, 1983, Ofshe retained Marvin Glass,

Esquire, to act as co-counsel, and informed Black of his

decision. Glass indicated that he would handle all

communications with the government, including plea

negotiations, and that Black would prepare the case for

trial, and would investigate and file appropriate

motions. This breakdown of duties was confirmed in a

meeting between Black and Glass in March, although

Black remained sole counsel of record until July 1, 1983.

Thereafter, while still actif8 25 counsel for Ofshe,

Glass contacted the United States Attorney's Office in

Chicago, Illinois, and learned he was a target of the

“Greylord’” investigation. Bei?8 keen to diminish his

own criminal responsibility, Glass offered to provide

information to and cooperate With the government in

identifying and investigating suspected drug traffickers.

Therefore, Glass periodically met with Assistant U.S.

Attorney (AUSA) Turow to proVide useful information

about certain alleged criminal activities.

Later, on June 8, 1983, G1255 mentioned Ofshe as

a possible target during a meeting with Turow. When

Glass indicated that he was Currently representing

Ofshe in Fort Lauderdale, Turow warned him not to

2Operation “Greylord” refers to 4 federal investigation of

corruption within the Cook County circuit Court. Chicago Courts

Reel From Corruption Probe, The National Law Journal, March

2, 1987, at 1, Col. 1.

reveal any privileged attorney-client conversations but

encouraged him to proceed as an informant. Glass then

began to detail activities regarding certain individuals,

whom he had met through Ofshe, who discussed a

money laundering scheme. In addition, Glass told AUSA

Turow about Ofshe’s request that Glass find a buyer for

“a ton of marijuana.”

AUSA Turow sought and received permission to

place a Nagra body bug on Glass and conduct an

electronic surveillance of the conversations between

Glass and his client. These conversations included some

unplanned discussions about his Florida case including

the timing and likelihood of success of the motion to

suppress. This electronic surveillance was done with

Glass’ consent while acting as Ofshe’s attorney and as

a “cooperating individual” for the government. To guard

against improper conduct, AUSA Turow testified that

the agents installing and monitoring the body tape were

given very strict guidelines to instruct Glass not to

violate any attorney-client privilege.’

Glass, of course, was not told at the time of the

electronic surveillance that he had to withdraw from

representation of Ofshe. Indeed, Glass was not told to

withdraw for several months. Eventually, however, he

was told to withdraw, but the United States Attorney

did nothing to confirm his withdrawal or otherwise

determine the status of the case. Significantly, the

government did not file a motion to disqualify Glass or

take any other action to inform the defendant of the

>The monitored conversation was conducted without approval

of the United States Attorney’s Office or the United States District

Court in Miami, Florida.

App. 8

conflict of interest, although it was aware of the conflict

since June 8, 1983. Thus, the government allowed the

ineffective representation to continue for over 10

months.

In February, 1984, Judge Gonzalez, who was

presiding over Ofshe’s case, learned that Glass had been

enlisted as an informant against his client and ordered

the United States Attorney to disclose this fact to the

defendant. Glass appealed Gonzalez’s decision and did

not move to withdraw until April, 1984. Even then he

continued to hide the fact that he was working as an

informant, with governmental consent, until February,

1985. Since the court file was sealed, defendant Ofshe

could not discover the reasons for Glass’ withdrawal or

about the appeal taken by Glass.

Although Black was prepared for trial in April of

1983, Glass instructed him to file a motion for

continuance which was to include a waiver of speedy

trial. Later, the day after Glass began giving

information to the United States Attorney in Illinois,

Glass had Ofshe execute a written formal waiver of

speedy trial. At Glass’ instructions, additional

continuances and waivers of speedy trial were filed in

May and June, 1983. Nevertheless, by July, 1983, both

sides had announced at calendar call that they were

ready for trial.

On June 28, 1983, the parties appeared at court

before Judge Gonzalez for the actual trial. On that day,

AUSA Hursey advised that he needed a few days to

locate his witnesses. Glass and Hursey then left the

courtroom and went into a private conference without

App. 9

the presence of Ofshe or Black. During their private

meeting, Glass convinced Hursey to dismiss the

Indictment based on Glass’ representation that Offshe

would cooperate and provide the information. Glass

further offered to waive reindictment and allow the

government to file charges by Information.

Subsequently, Hursey returned to the courtroom and

moved for dismissal of the Indictment without prejudice.

The motion was granted by the court.

As Glass, Ofshe, Black, and private investigator

David Waters were leaving the Courthouse, they

discussed various matters which required legal

attention since Ofshe’s case had been dismissed. Glass

stated he would secure all property originally seized or

given to secure the personal surety agreement,

including an automobile that was in forfeiture. Based

on that representation, Black did no further work on

the forfeiture proceeding.

Later, the government reinstituted criminal

proceedings against Ofshe. In August, 1983, Black

received a Notice of Arraignment on an Information and

called Glass who told him that would take care of it.

Black then prepared a motion to dismiss the

Information, but did not file it because Hursey told him

that Glass had agreed to waive the filing of an

Indictment.

Black testified he next appeared on December 9,

1983 at a sounding of the case for trial. He then spoke

to Glass who told Black he would have anothe: ettorney

appear at court. Neither Glass nor any other attorney

appeared. Fortunately, the case was taken off the

calendar and continued through February, 1984.

App. 10

In February, 1984, the defense announced they were

ready for trial, however, the case was not set for trial

until March, 1985. Ofshe did not request any

continuances from January, 1984 until March, 1985. His

request for continuance from the March, 1985 tria!

setting was based upon problems in reassembling the

dormant file, locating missing witnesses, discovering

and investigating the reasons for Glass’ in camera

appeal from Gonzalez’s order, and researching the

grounds for the motion to dismiss.

Black first learned, on February 16, 1985, through

a letter from Chief Assistant United States Attorney

Joseph McSorley that Glass was a government

informant and had worn a body bug during his

conversations with his client, Ronald Ofshe, on June 14,

1983. Naturally, Black was concerned. Ofshe was also

concerned.

AUSA Turow testified in detail about the procedures

employed to assure there would be no violation of any

attorney-client privilege. He stated that he and his

superiors discussed the matter fully as soon as they

learned that Ofshe’s counsel, Glass, was “keen on

diminishing his criminal resonsibility” and wanted to

become a “‘cooperating individual,” and was willing to

provide information regarding Ofshe’s criminal

activities. Turow also testified that by June 10, 1983,

the United States Attorney in Illinois had given

government agents very strict instructions that Glass

was to follow based on the attorney-client privilege. The

agents were to transmit these guidelines to Glass.

Apparently, as the agents were wiring Glass for his

undercover conversation with Ofshe, Glass said that the

App. 11

case against Ofshe had been dismissed. After June 1983,

contact between Glass and the United States Attorney’s

Office in Illinois was sporadic, but in August of 1983

Glass told the agents that the case had been reinstated

and that he still represented the defendant. At this time,

Turow felt obliged to inform the United States Attorney

in the Southern District of Florida of the situation.

However, the United States Attorney for the Southern

District of Florida and his chief assistants decided not

to reveal these matters to the prosecutor, Hursey.

II. DISCUSSION

Although appellant relies upon several independent

theories to challenge his conviction, this appeal

generally concerns two. First, was the search warrant

properly issued and executed? Second, does the

government’s use of a criminal defense attorney as an

informant warrant the reversal of appellant’s

conviction?

A. The Search Warrant

1. The Sufficiency of the Application for the Search

Warrant

Ofshe argues that the agents omitted critical

information from the search warrant application.

Specifically, the application for the search warrant did

not mention the criminal record of the informant nor

did it state that he was in federal custody when the

purchase of cocaine was made at the premises to be

searched. Ofshe argues that these omissions were

“either intentional or with reckless disregard for the

App. 12

truth.” For these reasons, he urges that doubt is cast

on the existence of probable cause, and that the district

court should have invalidated the search warrant.

Appellant overlooks the critical fact that the search

warrant affidavit was based on the personal

observations of a reliable informant. When Agent

Chapman communicated the informant’s observations

to Agent Sternaman, the affiant, Chapman, described

the informant as a proven, reliable informant who had

furnished valuable information on at least 14 occasions

during the past twelve years. On each occasion, an

arrest and/or seizure occurred. The informant stated

that he had been in the office in question at least once

a month for the previous three years and that he had

observed cocaine in one or both of the two safes on each

occasion. The informant further stated that, sixteen

days before (November 16, 1982), he had observed a

multi-kilogram quantity of cocaine in a safe located at

the address in question and had obtained cocaine from

Ofshe for his own use.

[1, 2] Insignificant and immaterial misrepresen-

tations or omissions will not invalidate a warrant. See

Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978). Before issuing a search warrant, the

judge must “make a practical, common sense decision

. .., given all the circumstances set forth in the

affidavit . . ., [that] there is a fair probability that

contraband or evidence of a crime will be found in a

particular place.”’ Illinois v. Gates, 462 U.S. 213, 238,

103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1982). The

reviewing court must then examine the situation and

determine that the issuing judge “‘had a ‘substantial

App. 13

basis for. . . concludling]’ that probable cause existed.”

Id. at 238-39, 103 S.Ct. at 2332-33 (quoting Jones v.

United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4

L.Ed.2d 697 (1960)). Here, it was the past, credible

dealings over a twelve year period with Agent

Chapman. In addition, the informant’s statements were

based on his personal knowledge. He recited having

received cocaine from Ofshe for his personal use. This

fact, combined with this further statement that he had

seen cocaine in Ofshe’s safes once a month for the

previous three years, told the district court enough

about the informant’s background. Therefore, the

omission of the informant’s criminal convictions and

incarceration, when considered with all the information

contained with the application, does not invalidate the

warrant. See United States v. Harrington, 761 F.2d 1482,

1484-85 (11th Cir.1985); United States v. Strauss, 678

F.2d 886, 893 (11th Cir.), cert. denied, 459 U.S. 911, 103

S.Ct. 218, 74 L.Ed.2d 173 (1982).

2. The Failure to Direct the Warrant to a Civil Law

Enforcement Official and its Issuance by the Same

Person Designated to Execute the Warrant

Ofshe argues that the search warrant was invalid

because it was issued by and directed to the Honorable

Norman C. Roettger, United States District Judge, for

execution. Ofshe also asserts that the warrant violated

the Constitutional requirements of the Fourth and Fifth

Amendments because Judge Roettger was not a

“neutral and detached magistrate.’ We disagree.

[3, 4] The designation of the issuing judge to

execute the warrant was obviously inadvertent. A

search warrant can be executed by the person to whom

App. 14

a warrant is directed or to any officer authorized by law

to execute search warrants. United States v. Martin, 600

F.2d 1175, 1181-82 (5th Cir. 1979). Federal agents,

including the affiant, DEA Agent Robert Sternaman,

executed the warrant. The defect in the search warrant

was a mere technicality and does not require this court

to invalidate the warrant. See United States v. Soriano,

482 F.2d 469, 478-80 (5th Cir.1973), modified in other

respects, 497 F.2d 147 (1974) (en banc); see also United

States v. Burke, 517 F.2d 377 (2d Cir.1975). The errors

assailed were those of form, not of substance. Thus, the

district court was correct in holding that these defects

did not invalidate the warrant.

3. Description of Premises.

[5] “The Warrant Clause of the Fourth

Amendment categorically prohibits the issuance of any

warrant except one ‘particularly describing the place

to be searched and the persons to be seized.’ ”» Maryland

v. Garrison, U.S. ___, 107 S.Ct. 1013, 1017, 94

L.Ed.2d 72 (1987). In this case the “premises” which

were to be searched were described in the search

warrant as:

Appliance King, Division of Fed-Air of Florida,

Inc., located at 2216 S.W. 60th Terrace,

Miramar, Florida, a two-story concrete, and

masonry building, white in color, and its

contents, including two safes, each being four

feet by four feet.

Appellant contends that this description was

insufficient, and that the district court should have

App. 15

voided the warrant because it named only one business

located in a multiple use commercial building. Again,

we disagree.

An erroneous description of premises to be

searched does not necessarily render a warrant

invalid. The Fourth Amendment requires only

that the search warrant describe the premises

in such a way that the searching officer may

‘“* ‘with reasonable effort ascertain and identify

the place intended.’ ”

United States v. Burke, 784 F.2d 1090, 1092 (11th

Cir.1986) (citation omitted).

The district court found that the agents learned only

after the warrant was issued that the premises described

in the warrant were subdivided into separate offices and

the record supports this conclusion. Although the agents

had looked at the outside of the building on December

2, 1983, they did not actually enter the building until

December 3, 1983, when they executed the warrant. The

layout of the office space supports the agents’ confusion.

Of the seven offices in the building, six were used by

Fed-Aire, Appliance King or appellant. Only one office

was used by a separate business. When the agents

executed the search warrant, they found that there was

a single, locked entrance to the premises. The locked

door was controlled by a single receptionist, who

answered the telephone for all the offices. The mail was

also received centrally and distributed to each office.

Thus, the agents reasonably believed, until they entered

the premises, that the office space belonged solely to

Appliance King/Fed-Aire. Moreover, during the search,

there appeared to be a connection between Ofshe and

App. 16

a

Wayne Steinberg, who identified himself to the agents

as the owner of the building.*

In the final analysis, the agents followed exactly the

authority of the warrant in that they searched only the

two safes and the Appliance King Division of Fed-Aire

of Florida, Inc. premises. Their actions were reasonable.

Thus, we cannot invalid the warrant for the reason

presented. See e.g., Garrison, 107 S.Ct. at 1019.

B. The Government's Use of Criminal Defense

Counsel as an Informant

Ofshe asserts that he was prejudiced by the invasion

of his attorney-client relationship. He also vehemently

argues that the government’s conduct in this case was

so utterly outrageous that it warrants dismissal of the

Indictment. Because of the gravity of this situation, we

have carefully examined appellant’s serious contentions.

1. The Invasion of the Attorney-Client Privilege

Ofshe forcefully argues that his expectation of

privacy was violated and his attorney-client privilege

was invaded; therefore, he insists that his Indictment

should have been dismissed. He argues that he was

generally prejudiced because the government

encouraged Glass to act in his own interest at the

‘When the agents entered appellant’s office, they found that

the safes mentioned in the warrant were locked. The agents called

a locksmith to drill open the safes. When the locksmith arrived,

he asked Steinberg to save him a lot of work and give the agents

the combination to the safes. Steinberg told the locksmith not to

talk to him and walked away.

App. 17

expense of his client, creating an obvious conflict of

interest. More specifically, he points out that the

government placed a body bug on his attorney and

surreptitiously monitored a conversation which included

discussion concerning future criminal activity and

discussions regarding his pending court case.

Ofshe insists that the infringement of his attorney-

client privilege or his right to counsel automatically

requires the dismissal of his Indictment. Yet, in United

States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66

L.Ed.2d 564 (1981), the Supreme Court squarely held

that absent demonstrable prejudice, dismissal was

plainly inappropriate as a remedy for such a Sixth

Amendment violation. Here, we find no demonstrable

prejudice.

[6] During the recorded conversation, the only

information related to the pending case concerned the

motion to suppress which was part of this public record.

No additional specific facts in the case or strategic

decisions were discussed. In fact, Ofshe’s verbatim

recital in his brief confirms this conclusion.

Significantly, nothing pertinent to the Florida case was

communicated to the United States Attorney assigned

this case. Thus, since no information was furnished

AUSA Hursey as a result of the intrusion, no Sixth

Amendment violation occurred. Weatherford v. Bursey,

429 U.S. 547, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

[7] Other cases emphasize the fact that

defendant must be prejudiced before an Indictment may

be dismissed. For example, United States v. Melvin, 650

F.2d 641 (5th Cir.1981) is instructive. There, the court

App. 18

reversed a district court order dismissing an Indictment

because of a government informant’s attendance at

meetings between defendant and his counsel at which

defense strategy had been discussed. The Melvin court

held that the district cov * could not dismiss the

Indictment without first finding that the intrusion into

appellee’s attorney-client relationship had prejudiced

the ability of appellee’s attorneys to provide adequate

representation or otherwise prejudiced his defense. If

prejudice was found, the district court was ordered to

make a determination as to whether some other remedy

short of dismissal could be tailored to vindicate

appellee's Sixth Amendment right to counsel and a fair

trial.

In United States v. Sander, 615 F.2d 215 (5th Cir.),

cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41

(1980), police officers examined an attorney’s

confidential files on defendant’s case following the

attorney's murder. No injury or prejudice resulted

because nothing in the file was utilized by the

prosecution. Therefore, the court in Sander held that

the appropriate remedy for such an intrusion is to

suppress any evidence unlawfully obtained, rather than

dismiss the case. Sander, 615 F.2d at 219.5

We reiterate and emphasize that Ofshe suffered no

prejudice as a result of the taped conversation. The taped

conversation produced no tainted evidence, and the

intrusion into any potentially privileged attorney-client

matters was not purposeful. In short, no information was

‘Here, the issue of suppression is irrelevant as none of the

statements recorded was to be used to prove the government’s case.

App. 19

provided to the prosecuting attorney. Similarly, while

Ofshe claims that he was also prejudiced by waiving,

at Glass’ direction, his right to dismissal under the

Speedy Trial Act, he overlooks the fact that original and

supplemental motions to suppress and other motions

were filed in his behalf by Black which tolled the

running of the speedy trial clock until they were heard.

See Henderson v. United States, __ U.S. ____ , 106 S.Ct.

1871, 1874, 90 L.Ed.2d 299 (1986). Likewise, the

government stipulated -to the testimony of any

unavailable defense witnesses. Finally, we note that

appellant was not prejudiced in this case because Black

had no conflict of interest and provided zealous

representation at all times after prosecution was

initiated. Regardless of Glass’ poor performance, Black

was not prevented from acting in Ofshe’s best interest.

Thus, we hold that the district court properly denied

Ofshe’s Motion to Dismiss.

2. Outrageous Government Conduct Claim Under the

Fifth Amendment

[8] Ofshe argues that the government’s conduct in

invading the communications between him and Glass

was so outrageous that it violated his Fifth Amendment

due process rights. Hampton v. United States, 425 U.S.

484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976); United States

v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366

(1973). To constitute a constitutional violation the law

enforcement technique must be so outrageous that it is

fundamentally unfair and “shocking to the universal

sense of justice mandated by the Due Process Clause

of the Fifth Amendment.” Russell at 432, 93 S.Ct. at

1643. In determining whether such conduct exists, the

“totality of the circumstances” must be considered “with

App. 20

no single factor controlling.” The defense is to be

‘

invoked only “in the rarest and most outrageous of

circumstances.” United States v. Haimowitz, 725 F.2d

1561, 1577 (11th Cir.), cert. denied, 469 U.S. 1072, 105

S.Ct. 563, 83 L.Ed.2d 504 (1984), quoting United States

vu. Tobias, 662 F.2d 381, 387 (5th Cir.1981), cert. denied,

457 U.S. 1108, 102 S.Ct. 2908, 73 L.Ed.2d 1317 (1982).

See also United States v. Mulherin, 710 F.2d 731, 735

(11th Cir.1983), cert. denied, 464 U.S. 964, 104 S.Ct. 402,

78 L.Ed.2d 343 (1984). Moreover, in Hampton, the court

indicated that ... a demonstrable level of

outrageousness warranting dismissal would be

especially difficult to show in contraband offenses

“which are so difficult to detect in the absence of

undercover government involvement.” Hampton at 495

n. 7, 96 S.Ct. at 1653 N. 7.

[9] After considering the totality of the

circumstances presented in this case, we hold that the

actions of the government were not so outrageous as to

“shock the universal sense of justice.’ Therefore, the

district court’s denial of the motion to dismiss is

affirmed. In reaching this decision, however, we must

stress two points. First, our holding is based upon the

unique facts of this case. Second, we do not condone the

government’s use of criminal defense attorneys as

informants against their clients.°®

‘While we have not found the government’s conduct sufficiently

outrageous to warrant the dismissal of his Indictment, we do

believe that Glass’ and Turow’s conduct was reprehensible.

Because the district judge is more familiar with the attorneys’

conduct, we assume he will refer this matter to The Attorney

Registration and Disciplinary Commission, 203 N. Wabash, Suite

1900, Chicago, Illinois 60601, for appropriate action.

App. 21

The facts show that the investigation was initiated

by the Chicago office and that no evidence was provided

to the Miami Assistant U.S. Attorney prosecuting Ofshe.

Glass’ offer to help the Chicago office was designed to

obtain information regarding Ofshe’s subsequent

criminal conduct and not used to discover defense

strategy in the Florida case. Therefore, the invasion of

the attorney-client relationship produced no evidence

against Ofshe. More importantly, because Black

provided zealous representation, Ofshe was not

prejudiced in his defense. Had there been demonstrable

evidence of prejudice, we would be compelled to reverse.’

Ill. CONCLUSION

Several aspects of this case concern us. The evidence

against Ofshe should have been easily obtained. Instead,

the bungled search warrant procedures created

unnecessary difficulties. Furthermore, the conduct and

judgment exhibited by some of the attorneys were

questionable at best. Yet, the conduct at trial, by Black,

Hursey, and Judge Gonzalez, was quite credible and

ensured that Ofshe was provided with a fair trial.

‘In addition, appellant, argues that he was also prejudiced by

“waiver of forfeiture proceedings” and “change in precedents

concerning search and seizure.” We agree with the magistrate in

the Review and Recommendation, affirmed and adopted by the

district court:

The defendant’s allegations concerning waiver of

forfeiture proceedings and change in precedents relating

to search and seizure are without merit. The forfeiture

issue is not relevant to this case and a change in

precedents is speculative and fails to set forth sufficient

reasons to support dismissal.

App. 22

After reviewing the law and applying it to the

unique facts presented in this case, we find that the

district court correctly denied the motion to suppress

and the motion to dismiss. Therefore, WE AFFIRM.

App. 23

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 82-6129-Cr-GONZALEZ

UNITED STATES OF AMERICA

US.

RONALD OFSHE

REVIEW AND RECOMMENDATION

THIS CAUSE is before the Court on Motion to

Dismiss filed by the defendant, Ronald Ofshe. At

hearing, certain factual issues were resolved by the

testimony of former Assistant United States Attorney

Michael Hursey; Assistant United States Attorney Scott

Turow of the Northern District of Illinois; Federal

Bureau of Investigation Special Agent Robert Gibson

III; secretary to Mel Black, Gail Allen; private

investigator William David Waters and attorney Mel

Black.

The record and testimony revealed that in December

of 1982, the defendant was arrested in Miramar, Florida,

and he retained the services of Mel Black, Esq., who

handled the bond hearing, arraignment, initial

discovery review and the preparation of a motion to

suppress.

The testimony revealed further that in February of

1983, the defendant retained Marvin Glass, Esq., to act

as co-counsel. As Mr. Black testified:

App. 24

i

Glass indicated that he was going to handle all

communications with the Government,

including plea negotiations, and that Me!

Black was to continue preparing the case, doing

the investigation and working’ on

motions. . . . This breakdown of duties was

confirmed in a meeting between Black and

Glass in March. .

Subsequently, according to the Assistant United

States Attorney then assigned the case, Michael Hursey,

Esq., Mr. Glass and Mr. Black met with Mr. Hursey to

discuss a plea negotiation, and the conversation was

directed to alleged defects in the search warrant as

opposed to the question of the defendant’s cooperation

with the Government.

Assistant United States Attorney Scott Turow

testified, essentially, that while acting as counsel for

the defendant in thé instant case, Mr. Glass contacted

the United States Attorney’s Office in Chicago, Illinois

and, being “keen to diminish his own criminal

responsibility’, Mr. Glass offered to provide information

to and cooperate with the Government.

The defendant first was mentioned by Mr. Glass as

a possible target on June 8, 1983 when, during a

meeting with Assistant United States Attorney Scott

Turow, Mr. Glass told Mr. Turow that he represented

a defendant in Fort Lauderdale. Mr. Glass then began

to detail activities relating to some persons in North

Carolina who he had met through the defendant and

who spoke to Mr. Glass about a money laundering

scheme and of the defendant’s request that Mr. Glass

find a buyer for “a ton of marijuana.”

App. 25

At this juncture, Mr. Turow sought and received

permission to place a Nagra body bug on Mr. Glass and

conduct an electronic surveillance of the conversations

between Mr. Glass and his client, the defendant, Ronald

Ofshe. These conversations included minimal

unplanned discussions about his Florida case. This

electronic surveillance was done with the consent of Mr.

Glass who was acting as Mr. Ofshe’s attorney and as

a “cooperating individual” for the Government.

Assistant United States Attorney Scott Turow

testified that the agents installing and monitoring the

body tape were given very strict guidelines to instruct

Mr. Glass not to violate any attorney-client privilege.

The monitored conversation was conducted without

approval of the United States Attorney's Office or the

United States District Court in Miami, Florida.

However, approval had been obtained from the United

States Attorney of the Northern District of Illinois for

the electronic surveillance in Miami. As Mr. Black

points out in his Supplemental Memorandum in Support

of his Motion to Dismiss.

The body bug recorded the entire conversation

regardless of whether the conversation was

about the suspected future criminal activity or

about the pending case against Ofshe. No

precautions were taken to prevent or minimize

the surveillance and recording of privileged

attorney/client communications about the

instant pending case. . . . The Government

knew taat Marvin Glass was acting as Ofshe’s

attorney at the time of the body recording but

App. 26

decided to proceed regardless. The Agent

listened to the tape and learned it contained

a strategy discussion of Ofshe’s case. Glass was

not told at the time of the electronic

surveillance that he had te withdraw from

representation of Ofshe. Glass was not told to

withdraw for several months. Even after he

was told to withdraw, the U.S. Attorney did

nothing to confirm his withdrawal or to

otherwise follow the status of the Ofshe case.

The Government did not file a motion to

disqualify Glass or take other action to inform

the defendant of the conflict of interest. The

Government had been aware of the conflict of

interest since June 8, 1983, but allowed the

ineffective representation to continue for over

10 months. Glass did not move to withdraw

until April, 1984 as counsel for Ofshe and even

then continued to hide the real reason for

withdrawal, with Governmental consent, until

February, 1985. The Court file was sealed...

the Defendant Ofshe could not learn the

reasons for withdrawal by Glass or about the

appeal taken by Glass to overturn the Court’s

order to disclose to the Defendant the actions

of Glass and the Government.

The testimony from hearing also reveals that

although Mr. Black was prepard for trial in April of

1983, Mr. Glass instructed him to file a Motion for

Continuance which was to include a waiver of speedy

trial. Mr. Glass later had the defendant execute a

written formal waiver of speedy trial which was done

the day after Mr. Glass began giving information to the

United States Attorney in Illinois.

App. 27

At Mr. Glass’ instructions, additional continuances

and waivers of speedy trial were filed in May and June,

1983, and by July, 1983, both sides had announced at

calendar call that they were ready for hearing on a pre-

trial motion and for trial.

On June 28, 1983, the parties appeared at Court

before Judge Gonzalez for the actual trial. On that day,

Mr. Hursey advised that he needed a few days to get

his witnesses. Mr. Glass and Mr. Hursey then left the

courtroom and went into a private conference without

the presence of the defendant or Mr. Black.

Subsequently Mr. Hursey returned to the courtroom and

moved for dismissal of the Indictment without prejudice.

The motion was granted by the Court.

Mr. Hursey testified at hearing that in the above

private meeting Mr. Glass convinced him to dismiss the

Indictment and promised that the defendant shortly

would be able to provide the information and

cooperation that Mr. Glass had promised. Mr. Glass

further offered to waive re-indictment and allow the

Government to file charges by Information.

According to the witnesses at hearing, as Mr. Glass,

the defendant, Mr. Black and private investigator David

Waters were leaving the Courthouse, Mr. Glass stated

he was going to “take care of” obtaining return of all

property seized or given to secure the personal surety

agreement, including an automobile that was in

forfeiture. Based on that representation, Mr. Black

testified he did no further work on the forfeiture.

App. 28

In August of 1983, Mr. Black received a Notice of

Arraignment on an Information and called Mr. Glass

who told him that Mr. Glass would take care of the

problem. Mr. Black prepared a Motion to Dismiss the

Information, but he did not file it when Mr. Hursey told

him that Mr. Glass had agreed previously to waive the

filing of an Indictment. Thus, it appeared that Mr. Glass

was continuing to make the decisions about strategy and

tactics in the case.

Mr. Black testified he next appeared on December

9, 1983 at a sounding of the case for trial He then spoke

to Mr. Glass by telephone who told Mr. Black not to

worry about the sounding as he would take care of it

by having another attorney appear. Neither Mr. Glass

nor any other attorney appeared, but the case was taken

off the calendar and continued through January, 1983

and February, 1984.

In February of 1984, Mr. Black, now sole trial

counsel, announced ready for trial. (Mr. Black had

received a motion to withdraw from Mr. Glass in April

of 1984.) The case was not set for trial after February,

1984, until March, 1985. The defendant did not request

any continuances from January, 1984 until March,

1985. According to the testimony, the request for

continuance from the March, 1985 trial setting was

owing to problems in re-assembling the dormant file,

locating missing witnesses and discovering and

investigating the reasons for the in camera appeal by

Mr. Glass and the grounds for the instant Motion to

Dismiss.

App. 29

Mr. Black first learned, on February 16, 1985, in a

letter from Chief Assistant United States Attorney

Joseph McSorley that Mr. Glass was a Government

informant and had worn a body bug during his

conversations with his client, Ronald Ofshe, on June 14,

1983.

Assistant United States Attorney Scott Turow

testified in detail about the lengths they went to to

assure there would be no violation of any attorney-client

privilege. He assured the Court that he and his superiors

discussed the matter fully as soon as they learned, in

June of 1983, that the Florida defendant, Ronald Ofshe,

was a possible target of the Illinois investigation and

that Ofshe’s counsel, Mr. Glass, was “keen on

diminishing his criminal responsibility” and wanted to

become a “cooperating individual.” Mr. Turow testified

that by June 10, 1983, the United States Attorney in

Illinois had given Government agents very strict

instructions that Mr. Glass was to follow in order to

avoid violating any attorney-client privilege, and the

agents were to transmit these guidelines to Mr. Glass.

Apparently, as the agents were wiring Mr. Glass for his

undercover conversation with the defendant, Mr. Glass

said that the case against Mr. Ofshe had been dismissed.

After June of 1983, contact between Mr. Glass and the

United States Attorney’s Office in Illinois was sporadic

and, in August of 1983, when Mr. Glass told the agents

that the case had been reinstated and Mr. Glass still

represented the defendant, Mr. Turow felt obliged to tell

the United States Attorney in the Southern District of

Florida of what had happened. When the information

relative to all the events regarding Mr. Glass, Mr. Ofshe

and Mr. Glass’ cooperation were related, the United

App. 30

States Attorney for the Southern District of Florida and

his chief assistants decided not to reveal these matters

to the prosecutor, Mr. Hursey.

In sum, therefore, by August of 1983, Mr. Glass was

cooperating with the United States Attorney in Illinois

and snitching against his client, Mr. Ofshe, while not

telling his co-counsel, M.. Black, about his conflict or

his activities. Mr. Glass did not file a Motion to

Withdraw until nearly nine months later—in April of

1984. In the meantime, the right hand of the

Government (the I]linois branch) was very busy trying

to conduct undercover business in south Florida without

letting the left hand of the Government (the South

Florida branch) know what it was doing. When the right

hand finally had to confront the left hand, they

apparently decided to try to wash both hands and wipe

the resulting grime on a towel to be put into a sealed

hamper that neither the defendant nor the prosecutor

nor even the defendant’s local counsel could see into.

RECOMMENDATIONS OF LAW

The defendant alleges prejudice owing to gross

Government misconduct and, citing to United States v.

Russell, 411 U.S. 423 (1973), contends that the

cumulative effect of the many alleged abuses by the

Government mandates that the court impose the

ultimate sanction of dismissal. The defendant cites the

Court to a catalogue of abuses:

App. 31

TT

1. Waiver of speedy trial and exclusion of time

from April 21, 1983 through February 28, 1985.

2. Deprival of counsel of choice.

3. Governmental informant directing defense

case, strategy and tactics.

4. Governmental informant being privy to

defense strategy and tactics.

5. Waiver of forfeiture proceedings.

6. Change in the precedents concerning

search and seizure.

7. Government overheard attorney/client

conversations.

In support of point one, waiver of speedy trial, the

defendant asserts that Marvin Glass was responsible for

directing a waiver of speedy trial and procuring

unnecessary continuances. Obviously Glass

sought the delays of Ofshe’s case so he could

keep Ofshe available as a bargaining chip.

When Glass directed the continuance of April

21, 1983, May, 1983, and June 21, 1983, he had

already assumed the role of government agent,

and he was not continuing the case for the

benefit of the client but in order to keep the

case pending so he could offer Ofshe as a target

of investigation.

App. 32

Thus, the defendant contends, Mr. Glass caused the

defendant to waive his right of dismissal for the

Government’s failure to bring him to trial within the

time limited specified by statute.

However, in examining the facts of the case, as the

Government points out in its Response:

Dismissal with prejudice under Title 18,

United States Code, Section 3162(aX2) is

absolutely inapplicable. Assuming arguendo

their [sic] was a violation of the Act, the factors

of seriousness of the offense, facts leading to

dismissal and impact of re-prosecution on the

administration of justice militate against such

an order. Most importantly, their [sic] exists no

prejudice respecting the defendant from any

delay. The previous argument that prejudice

resulted from witnesses who were made

unavailable has been resolved through

government stipulation to their testimony

... As with nearly every government

prosecution, this case has not gotten better

with time; it has only gotten older and

memories have weakened. This is prejudice to

the government—not the defendant.

In point two of his argument, the defendant contends

that he has been denied the right to the effective

assistance of conflict-free counsel. From this Court’s

perspective, the defendant is absolutely correct, and had

this situation continued through trial and the defendant

been convicted, he would most likely be able to remedy

the conviction on Petition for Writ of Habeas Corpus.

App. 33

In such a ease, the law is clear and unchallenged. In

Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.), reh’ng

denied 591 F.2d 102 (5th Cir.), cert. denied 444 U.S. 833

(1979), the Fifth Circuit said:

If a defense attorney owes duties to a party

whose interests are adverse to those of the

defendant, then an actual conflict exists. The

interests of the other client are sufficiently

adverse if it is shown that the attorney owes

a duty to the defendant to take some action that

could be detrimental to his other client.

Thus, it has long been held that prejudice need not

be shown where an actual conflict of interest is

demonstrated by the defendant. Cuyler v. Sullivan, 446

U.S. 335 (1980); United States v. Alvarez, 696 F.2d 1307

(1ith Cir.), cert. denied ___ U.S. ____ 103 S.Ct. 1878

(1983). Although a conflict may cause a defendant’s

attorney’s performance to fall below Sixth Amendment

standards, not all conflicts are so egregious as to rise

to a Sixth Amendment violation. Westbrook v. Zant, 704

F.2d 1487 (11th Cir. 1983). Most recently, courts have

firmly ruled that actual, not speculative, conflict must

be shown by the presentation of particularized instances

of conflicting interests and such must be established as

a constitutional predicate before the federal courts will

entertain consideration of this claim of ineffective

assistance of counsel. United States v. Ard, 731 F.2d 718

(11th Cir. 1984); Barham v. United States, 724 F.2d 1529

(11th Cir.), cert. denied U.S. ___, 104 S.Ct. 2687

(1984).

App. 34

As the Government sets forth in its Response:

Invasion of the attorney-client relationship

does not mandate dismissal of an indictment.

United States v. Morrison, 449 US 361, 101

S.Ct. 665 (1981); Weathford v. Bursey, [sic] 429

US 545, 97 S.Ct. 837 (1977); United States v.

Melvin, 650 F.2d 641 (5th Cir. 1981). The

remedy must depend upon the impact in the

criminal proceeding. Where, as herein, no

evidence is to be used in the prosecution and

no information is relayed to the prosecuting

authority, there is nothing to remedy. In light

of Morrison, where it was held the drastic

remedies of dismissal or suppression would not

apply absent a showing of prejudice, the Melvin

court fashioned the guidelines used herein. The

defendant must show how his representation

or defense was prejudiced. Melvin at 644. Then,

only if prejudice is shown, should the court

determine what remedy short of dismissal may

vindicate the defendant’s Sixth Amendment

rights to counsel and a fair trial. This is

balanced with the public’s interest in seeing

the guilty brought to justice. Jbid. .. .

Regardless of what occurred during Glass’

participation as co-counsel, each decision was

sanctioned not only by the defendant himself

but also co-counsel, Mel Black (see T26 and

T31, where defendant was present for

conversations with Hursey). The only pleading

filed by Glass, a motion to continue for July 25,

App. 35

1983, indicates he was retained on March 29,

1983. All other motions and pleadings were

filed by co-counsel, Black. The true nature of

Ofshe’s representation by attorneys Black and

Glass as it respects the waiver of his speedy

trial rights or continuances is unknown in that

Black and Ofshe have maintained their

attorney-client privilege (See T132-134,

141-142).

Attorney Mel Black has been appearing,

without interruption, for defendant Ofshe,

since day one of this prosecution. Attorney

Black was sole counsel of record until July,

1983. Attorney Black has been sole counsel of

record subsequent to April, 1984.

The testimony of attorney Black attempted to

place a barrier between case preparation on his

part and case negotiation by Glass. This

division of authority, as recognized by Mr.

Black, did not prevent him from acting in the

defendant’s best interests in filing motions to

continue the case (T138, 140). Whatever the

private arrangement was as to who made the

decisions, it was clear that the defendant, as

well as attorney Black, was consulted

gy 0 gee

The defendant next argues that by monitoring Mr.

Glass’ conversations with the defendant, the defendant’s

expectation of privacy was violated to such a degree as

to justify dismissal of the case. The defendant contends

that

App. 36

[tlhere is an enhanced privacy interest

underling the attorney/client relationship

which warrants a heightened degree of judicial

protection and supervision when attorney/

client conversations are the subject of

electronic surveillance. In the instant case the

electronic surveillance was conducted at the

whim and fancy of the agents without benefit

of court order, judicial supervision or

protection. ...

In the instant case the prosecution

intentionally overhead the conversations about

the pending case which the defendant had

every right to believe were privileged. The

government deliberately invaded Ofshe’s

privileged relationship with his attorney,

infiltrated the defense by planting an

informant and intercepted communications

between an attorney and his client.

The conduct of the government has prejudiced

the Defendant by the very destruction of his

relationship with this attorney. The

government action turned tradition on its head

and made it impossible for Ronald Ofshe to ever

rely upon the secrecy of his attorney

communication or the loyalty of his counsel. If

the governmental invasion and subversion of

the attorney/client relationship which occurred

in this case is sanctioned, there will be a

chilling effect on the Sixth Amendment.

App. 37

Even if the defendant’s assertions are true, the relief

available to the defendant would be suppression of the

statements the defendant made to Mr. Glass. United

States v. Morrison, 449 U.S. 361 (1981); United States

v. Sander, 615 F.2d 215 (5th Cir. 1980). In addition, as

the Government has stated, it does not intend to use

any of these statements. See, United States v. Sander, id.

Clearly the Government’s actions were ill-advised,

but they do not appear to have been deliberate attempts

to infringe on or destroy the defendant’s attorney-client

relationship with Mr. Glass. The Government attempted

to avoid any breaches of the attorney-client privilege

by issuing instructions and guidelines to Mr. Glass

before the consensual monitoring of Mr. Glass’

conversation with the defendant. Apparently the

Government overestimated Mr. Glass’ ability to take

instructions and/or underestimated the extent to which

Mr. Glass would go to diminish his criminal]

responsibility in the eyes of the Government. Regardless

of how this situation is viewed, the defendant has not

suffered any actual articulable prejudice so great as to

violate his due process rights nor were the Government’s

acts so heinous as to warrant dismissal. Without a

doubt, the Government was anxious to obtain

information from a putative defendant (Mr. Glass) who

appeared to have valuable information to give and, with

a shining example of tunnel-vision, bumbled ahead

without thinking through to the possible consequences

should Mr. Glass not follow their instructions. But, as

the Government presents in its Response:

App. 38

Grabbing at straws, the defendant states the

‘“‘sovernment has prejudiced the defendant by

the very destruction of his relationship with his

attorney.” This is a reversion to the per se

dismissal argument rejected by the Supreme

Court in Morrison and this circuit in United

States v. Melvin, 650 F.2d 641 (5th Cir. 1981).

The argument also ignores the fact that the

pre-existing attorney-client relationship with

Mel Black has continued to this date. The

record is clear that Black has remained conflict-

free and vigorously defended the defendant.

The defendant’s allegations concerning waiver of

forfeiture proceedings and change in precedents relating

to search and seizure are without merit. The forfeiture

issue is not relevant to this case and a change in

precedents is speculative and fails to set forth sufficient

reasons to support dismissal.

In fact, these last two arguments are but minor

complaints in the defendant’s litany of alleged abuses

which, together, he concludes amounts to Government

misconduct so outrageous as to violate his due process

rights.

The defendant is absolutely accurate when he states:

As noted in a decision of the Eleventh Circuit,

Government involvement in criminal schemes

can be so outrageous that it offends due process.

See U.S. v. Tobias, 662 F.2d 381 (5th Cir. 1981)

(Unit B), cert. denied, 457 U.S. 1108, 102 S.Ct.

2908, 73 L.Ed.2d 1317 (1982); see also Hampton

v. U.S., 425 U.S. 484, 492-93.

App. 39

Furthermore, ‘‘{slerious prosecutorial

misconduct may so pollute a criminal

prosecution as to require dismissal of the

indictment. . . without regard to prejudice of

the accused.” United States v. McCord, 509

F.2d 334 (D.C. Cir. 1974). See also United

States v. Crow Dog, 532 F.2d 1182 (8th Cir.

1976).

The granting of a dismissal for Government

misconduct is designed to maintain public

confidence in the administration of justice.

United States v. Taylor, 648 F.2d 565 (9th Cir.

1981). ““The dismissal of an Indictment because

of deliberate Government misconduct is used

as a prophylactic tool for discouraging future

actions of the same nature. Elkins v. United

States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4

L.Ed.2d 1669 (1960) . . .” United States v.

Houghton, 554 F.2d 1219 (1st Cir. 1977).

A careful examination of the facts in this case, taken

singly and as a whole, offends this Court. The

Government’s actions affront the dignity of the law and

the high purpose of law enforcement. What the

Government did and the method used to fulfill their

purpose, was at times half-baked, certainly not well-

planned, clearly improperly supervised and undoubtedly

ill-omened. Mr. Glass’ actions were deceptive, unctuous

but, for him, expedient.

However, even under the harshest light, the

Government’s actions do not so prejudice the defendant

or “shock the conscience”’ of the Court as to warrant

App. 40

Se a> A a "

ad alate Baie»

.

Dev eart,

dismissal of the case. United States v. Russell, supra;

United States v. Mulherin, 710 F.2d 731 (11th Cir. 1983);

United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983);

United States v. Savage, 701 F.2d 867 (11th Cir. 1983);

United States v. Capo, 693 F.2d 1330 (11th Cir. 1982);

United States v. Gianni, 678 F.2d 956 (11th Cir. 1982);

United States v. Nicoll, 664 F.2d 1308 (5th Cir.), cert.

denied 457 U.S. 1118 (1982): United States v. Tobias,

662 F.2d 381 (5th Cir.), cert. denied 457 U.S. 1108 (1982):

United States v. Ryan, 548 F.2d 782 (9th Cir.), cert.

denied 429 U.S. 939 (1976).

DONE AND SUBMITTED at Fort Lauderdale,

Florida, this 20 day of November, 1985.

/s/ PATRICIA JEAN KYLE

UNITED STATES MAGISTRATE

PATRICIA JEAN KYLE

Copies to:

AUSA Joseph McSorley

155 South Miami Avenue

Miami, FL 33130

Mel Black, Esq.

3050 Biscayne Boulevard—#1002

Miami, FL 33137

App. 41