# Petition for Writ of Certiorari — Ofshe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 963

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0887%3A1. Public record. Not legal advice.