Opposition Brief — Ofshe v. United States

| P Buprema Court, Us,

BILED

No. 87-407 3 | NOV 9 p87

— SCORE PES? AN IOL, JR.

Jn the Supreme Court of the nitty states—

OCTOBER TERM, 1987

RONALD ARTHUR OFSHE, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SARA CRISCITELLI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

fae

ty

, cy

oe

QUESTION PRESENTED

Whether a prosecutor’s use of an attorney as an infor-

mant against his client with respect to planned future

crimes unrelated to a pending criminal indictment against

the client requires dismissal of the pending indictment in

the absence of any prejudice.

(1)

eet ee a at — a

TABLE OF CONTENTS

ES Et

te oes aso whecd ase cba sssbeecdaw ees

ee ed yy ee guns ad. oka does wa 69 anaes

EN a a ga en a

ee Page eee neeeaeaceus

TABLE OF AUTHORITIES

Cases:

Cuyler v. Sullivan, 446 U.S. 335 (1980) .... 00.0.0...

Strickland v. Washington, 466 U.S. 668 (1984) ........

United States v. Cintolo, 818 F.2d 980 (1st Cir. 1987)...

United States v. DeLucca, 630 F.2d 294 (Sth Cir. 1980),

cert. denied, 450 U.S. 963 (1981) ...................

United States v. Kelly, 749 F.2d 1541 (11th Cir.), cert.

meee, 472 OS. 1OZ9(19ES) .. wc cee

United States v. Morrison, 449 U.S. 361 (i981) 2.0.0...

United States v. Russell, 411 U.S. 423 (1973) ....00.....

United States v. Vaughn, 797 F.2d 1485 (9th Cir. 1986) ..

Weatherford ,. Bursey, 429 U.S. $45 (1977) 2.00 eee.

Constitution and statute:

U.S. Const. Amend. VI ...................... 0000 ene

BE USC. SAUMAMA) «0c cc ccc ccc cece ees

(111)

On

|

i ii oa |

In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-407

RONALD ARTHUR OFSHE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-23) is

reported at 817 F.2d 1508. The magistrate’s recommenda-

tion (Pet. App. 24-41), which was adopted by the district

court, 1S unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 1, 1987. A petition for rehearing was denied on July

9, 1987. The petition for a writ of certiorari was filed on

September 8, 1987. The jurisdiction of this Court ts in-

voked under 28 U.S.C. 1254(1).

STATEMENT

On a conditional guilty plea entered tn the United States

District Court tor the Southern District of Florida, peti-

tioner was convicied of possession of cocaine with intent

to distribute it, in Violation of 21 U.S.C. 841(a)(1). He was

(1)

sentenced to four years’ imprisonment and a four year

special parole term. The court of appeals affirmed (Pet.

App. 1-23).

1. On December 3, 1982, federal agents executing a

search warrant at petitioner’s office found four-and-one-

half pounds of cocaine as well as other drugs and

notebooks detailing petitioner’s drug dealings (Pet. App.

5-6). Petitioner was arrested and indicted later that month.

He retained local attorney Mel Black to represent him at

the initial hearings, to prepare a motion to suppress the

seized evidence, and to serve as his trial counsel. In

February 1983 petitioner also retained Chicago attorney

Marvin Glass to assist in his defense, with the understand-

ing that Glass would handle all matters involving com-

munications with the prosecutors, including negotiations

relating to a possible plea agreement. /d. at 7. Both sides

agreed to continuance of the trial to enable the plea discus-

sions to progress, and petitioner waived his speedy trial

rights (id. at 27-28).

In mid-April 1983, Glass learned that he was a target in

the unrelated “Greylord” investigation, an investigation by

federal authorities in Chicago into corruption in the Cook

County, Illinois, judicial system. Anxious to reduce his

own potential criminal liability, Glass offered to provide

information to and cooperate with federal investigators,

ana ne met periodically with Assistant United States At-

torney Scott Turow of the Northern District of Illinois to

give information on various illegal activities of which he

had knowledge. Pet. App. 7. On June 8, 1983, Glass told

Turow about petitioner, whom he identified as a client ina

pending criminal action in Fort Lauderdale. While warn-

ing Glass not to reveal privileged communications to the

government, Turow encouraged Glass to provide non-

privileged information concerning petitioner’s criminal ac-

tivities. Glass told Turow about other individuals he had

met through petitioner who discussed setting up a money

laundering scheme. Glass also told Turow that petitioner

had asked Glass to help find a buyer for a ton of mari-

juana. /d. at 7-8. Glass subsequently consented to wear a

body recorder and tape-record a conversation with peti-

tioner, under strict instructions that he not discuss

attorney-client matters, including defense strategy in the

case in which Glass was representing petitioner. Glass told

the FBI agents who fitted him with the body recorder that

the criminal case against petitioner had been dismissed but

that he expected that petitioner would later be reindicted.

Id. at 11-12. Glass met with petitioner on June 14, 1983.

The ensuing conversation that Glass taped did not contain

any privileged information: it addressed primarily a pro-

posed marijuana transaction and, although passing refer-

ence was made to the filed motion to suppress, there was

no discussion of defense strategy. /d. at 18. Glass did not

continue to act as an informant against petitioner after

that date (id. at 30).

2. Prosecutors in the Southern Districi of Florida were

not informed in June that Glass was acting as an inform-

ant against his client during his legal representation of

petitioner. Contrary to what Turow and the FBI agents

were led to believe in June, the government did not move

to dismiss the indictment until late July 1983. The govern-

ment moved to dismiss at that time to permit the comple-

tion of a plea agreement that would obligate petitioner to

cooperate with the government, without the need to seek

further continuances of the trial. Pet. App. 28.' In August

1983 a superseding information was filed against peti-

tioner (id. at 29).

' The magistrate’s opinion mistakenly cites the date of the dismissal

as June 28, 1983. The correct date was July 28, 1983. See Oct. 8, 1985

Ir. 17-18.

2 In January 1984 iu appeared that the cooperation agreement

would not materialize, and when petitioner threatened to move to

dismiss the information, the government obtained a superseding tn-

dictment (Oct. 8, 1985S Tr. 23-24).

4

When Turow learned in August 1983 that the charge

had been reinstated, he told the United States Attorney for

the Southern District of Florida about Glass’s earlier

cooperation against petitioner (Pet. App. 12). To avoid

any possibility of tainting the prosecutor assigned to peti-

tioner’s case, the United States Attorney did not advise the

prosecutor about Glass’s cooperation (/bid.). Shortly

thereafter, Turow informed Glass that he could noi con-

tinue to represent petitioner (Feb. 17, 1984 Tr. 5-6).

Despite Turow’s repeated instructions to Glass, Glass did

not withdraw from the representation of petitioner (Pet.

App. 6; Oct. 8, 1985 Tr. 70). As a result, Turow and an

Assistant United States Attorney from Florida met with

the district judge and told him of the situation in February

1984, so that the court could consider disqualifying Glass

itself (Feb. 17, 1984 Tr. 1-13). The court agreed that Glass

could not stay in the case and that petitioner should be in-

formed of the facts (Feb. 17, 1984 Tr. 11).3 Glass,

however, did not move to withdraw from petitioner’s

defense until April 1984 (Pet. App. 29), and petitioner was

not told of the reason for his withdrawal until the govern-

ment sent his other attorney an explanatory letter in

February 1985 (id. at 11).

3. Following the revelation of Glass’s cooperation

with the government, petitioner moved to dismiss the in-

dictment based upon government misconduct. After an

evidentiary hearing, a federal @agistrate recommended

that the district court deny that motion, as well as peti-

tioner’s Motion to suppress the evidence uncovered during

the warrant-authorized search. After setting out the facts

(Pet. App. 24-31), the magistrate recommended rejection

of petitioner’s contention that he was prejudiced by Glass’s

informant activities. The magistrate noted that if the

> Glass appealed the district court order directing that petitioner be

told what had occurred. The court of appeals affirmed.

government had recorded any prejudicial statements on

the body recorder, petitioner’s remedy would be suppres-

sion of the statements (/d. at 38). She also found that the

government’s actions, though “ill-advised, * * * do not ap-

pear to have been deliberate attempts to infringe on or

destroy the defendant’s attorney-client relationship with

Mr. Glass” (ébid.). The magistrate rejected petitioner’s

other specific claims of prejudice that he alleged arose

from the tainted attorney-client relationship. Finally, the

magistrate concluded that, although “[a] careful examina-

tion of the facts in this case, taken singly and as a whole,

offends this Court” (/d. at 40), the government’s conduct

did not so prejudice petitioner or so “shock the

conscience” of the court as to warrant dismissal of the

prosecution (id. at 40-41). After an evidentiary hearing,

the district court affirmed the magistrate’s findings,

adopted her recommendations (see fd. at 22 n.7), and

denied both motions.

4. The court of appeals affirmed. The court noted that

since no information from the tape-recorded conversation

was conveyed to the prosecutor or otherwise used against

petitioner, no Sixth Amendment violation resulted trom

the intrusion into potentially privileged attorney-client

communications. Pet. App. 18. It then found that peti-

tioner was not prejudiced in any way by the intrusion or by

Glass’s continued representation. Citing this Court’s deci-

sion in United States v. Morrison, 449 U.S. 361 (1981), the

court concluded that the absence of prejudice made

dismissal an inappropriate remedy (Pet. App. 18-20).

Finally, ina decision explicitly limited to “the unique facts

of this case” and without condoning what had occurred,

the court agreed that the government conduct was “not so

outrageous as to ‘shock the universal sense of justice’ ” (id.

at 21). The court specifically noted that the invasion of the

attorney-client relationship produced no evidence against

petitioner. Moreover, in light of the zealous representation

6

provided petitioner by Black, his principal attorney, there

was no evidence that petitioner had been denied his right

to a competent defense (/d. at 22).4

ARGUMENT

Petitioner contends (Pet. 8-12) that the government con-

duct at issue here was an outrageous violation of his right

to counsel and requires dismissal of the indictment. There

are two problems with that argument. First, petitioner

does not claim to have been prejudiced in any respect by

the government’s actions, and this Court has clearly held

that dismissal is not an appropriate remedy for a Sixth

Amendment violation absent some showing of prejudice.

United States v. Morrison, 449 U.S. 361, 364-365 (1981).°

Second, both courts below examined the facts and cor-

rectly stopped short of concluding that the government

conduct at issue here was outrageous. There is nothing

* The court of appeals also affirmed the district court’s refusal to

suppress evidence that was seized in the warrant-authorized search.

Petitioner does not challenge the court of appeals’ decision on that

issue.

* Strickland v. Washington, 466 U.S. 668 (1984), upon which peli-

tioner relies, is not to the contrary. In that case, the Court noted that a

defendant convicted after a trial in which “ ‘an actual conflict of in-

terest adversely affected his lawyer’s performance’ ” may be entitled to

a reversal without having to make the full showing of prejudice re-

quired in other contexts. /d. at 692 (quoting Cuvier v. Sullivan, 446

U.S. 335, 350 (1980)). But petitioner is not merely seeking a reversal ot

his conviction. He is seeking a dismissal of the indictment. Further-

more, petitioner is not even suggesting that he was “adversely

affected” by Glass’s representation. Both the district court and the

court of appeals found that Glass’s role as an informant did not affect

his representation of petitioner on the charges brought in this case.

Petitioner does not dispute those findings, but argues instead only that

the government’s conduct “create[d] such a substantial threat ot preyju-

dice that prejudice must be presumed” (Pet. 11). Srickland provides

no support for that position.

inherently Outrageous in using as an informant a co-

conspirator who happens to be the target’s defense at-

torney, so long as there is no attempt Lo intrude into a pro-

tected attorney-client relationship and no intrusion results.

It is not unknown for attorneys to engage in criminal con-

duct with or on behalf of their clients, and a law enforce-

ment investigation of either or both parties does not

automatically infringe a constitutionally protected rela-

tionship. See, e.g., United States v. Cintolo, 818 F.2d 980,

1005. (ist Cir. 1987); United States v. Vaughn, 797 F.2d

1485, 1488-1489, 1492 (9th Cir. 1986); United States v.

Kelly, 749 F.2d 1541, 1551 (11th Cir.), cert. denied, 472

U.S. 1029 (1985); United States v. DeLucca, 630 F.2d 294,

301 (Sth Cir. 1980), cert. denied, 450 U.S. 983 (1981).

To be sure, it is not usual that an attorney and co-

conspirator becomes an informant against his client. But if

there is good reason to believe that the attorney is not cur-

rently engaged in the representation of his chent on a

pending charge or that a particular conversation between

the two will touch on nothing but joint future crimes, and

if the attorney is careful and under strict instructions to

avoid intruding into attorney-client or defense strategy

matters, treating the attorney like a cooperating cos

conspirator does not “ ‘shock[ ] * * * the universal sense

of justice’ ” (United States v. Russell, 411 U.S. 423, 432

(1973) (citation omitted)). And where the investigation

does not produce any tainted evidence or influence in any

way the ongoing prosecution—indeed, where the prose-

cutor does not even know of the cooperation — there is no

resulting Sixth Amendment violation. Cf. Weatherford v.

Bursey, 429 U.S. 545 (1977).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

SARA CRISCITELLI

Attorney

NOVEMBER 1987

US GOVERNMENT PRINTING OFFICE 1967) 2O2u4/t