The Champion

August 1998
RICO Report
By Barry Tarlow
Barry Tarlow is a nationally prominent criminal defense lawyer practicing in Los Angeles, CA.
He is a frequent author and lecturer on criminal law. He was formerly a prosecutor in the United
States Attorney's Office and is a member of The Champion Advisory Board.
The author wishes to thank Kevin Jon Heller and Blair Berk, members of his firm, for their
invaluable assistance in the preparation of this column.
Miami U.S. Attorney Becomes RICO Enforcer for Chamber of Commerce
Imagine a mammoth United States government prosecution. Sinister allegations of RICO,
RICO conspiracy and, Hobbs Act conspiracies. Federal prosecutors flying all over the world, and
returning with dozens of witnesses from Europe and South America to testify about the crimes.
Four exhaustive months of trial. Over a hundred witnesses called by the prosecution. Millions of
dollars spent on handsome, sophisticated exhibits, charts, and multi-media demonstrative aids for
the jury, and more than 150 pages of jury instructions submitted by the prosecution and defense.
On top of this, pronouncements by Tom Scott, the U.S. Attorney for the Southern District of
Florida, stating unequivocally that this was the single most important case in the office. All of
this, followed by over two months of jury deliberations.
One might think we were talking about a major war crimes prosecution; at the very least, a
trial relating to an insidious act of domestic terrorism. Instead, we are referring to the misguided
trial of 12 poor, African-American muggers from Miami who, in the end, shared only their
respective criminal job descriptions and the fact that they were targets in one of the most costly
and misguided -- and ultimately unsuccessful -- RICO prosecutions in recent years.
Widely promoted as a federal effort to prove that tourist muggers in Miami were actively
running an organized crime syndicate, all 12 defendants were indicted last fall and charged with
RICO, RICO conspiracy, Hobbs conspiracy, and substantive Hobbs' counts, among other
charges. See, United States v. Harrell, et al., Case No. 96-22-CR-Nesbitt (S.D. Fla. 1998). The
prosecution claimed that this motley crew carefully targeted foreign tourists -- but not for the
obvious reasons that they were likely to have more cash, be unfamiliar with the local area, and
generally more vulnerable to robbery. Instead, the prosecution theorized to the jury that the
defendants were so cunning, that they had specifically calculated that these particular visitors
would have difficulty "communicating with law enforcement" and would actually be less likely
to "return for state court criminal proceedings." The government spent an enormous sum of
money sending prosecutors and agents abroad for months at a time and bringing many of the
victims from Europe and South America to the United States at taxpayer expense to testify.
The majority of the defendants were already serving significant state court sentences for prior
robberies and criminal offenses. Many trial observers concluded that this was the local U.S.
Attorney's Office opportunity to walk away with splashy but relatively meaningless convictions,
intended to send a message on behalf of the local Chamber of Commerce that Miami had cleaned
up its act after a spate of highly publicized tourist robberies, and had this "organized criminal
menace" under control. Yet it quickly became apparent in the trial, which began in October, that
the dozen defendants were far from organized, and in fact the majority of the defendants did not
even know each other prior to the indictments. All of the defendants were African American, and
the majority of the victims were Hispanic; this fact, coupled with the clear overcharging in the
case, quickly led to the trial taking on incendiary racial overtones. Although originally estimated
by the prosecution to last no more than two months, it took over four months to conclude the
prosecution's case in the ornate historic central courtroom at the old Post Office building in
downtown Miami. Jury deliberations were also grueling, lasting more than two months; by the
end, of the 15 jurors originally selected, only 11 remained.
Prior to the verdict, a weary U.S. District Court judge, Lenore Nesbitt, admonished against any
demonstrations as the jury filed into the courtroom to deliver its decision. The jury had heard
gut-wrenching testimony from the victims, among them three Venezuelan nuns who were
attacked and robbed on Interstate 95 and deprived of money which was going to buy toys for
orphans. The prosecution also used the testimony of convicted drug criminals to place the
defendants in concert with one another for purposes of the RICO and Hobbs conspiracy
allegations.
The verdicts were astounding. Of the 12 defendants, six were acquitted outright of RICO, and
the jury hung on the other six defendants as to the RICO substansive charges. The jury also hung
on the RICO conspiracy and the Hobbs conspiracy for all defendants. Not one defendant was
convicted of any substantive Hobbs Act count. The government was left with a single guilty
verdict for one defendant -- a felon caught in possession of a gun.
How could such a monumental waste of government resources and abusive federalizing of
state criminal charges take place? According to talented co-lead defense lawyer Bill Matthewman
of Miami, who represented Sherman Douglas, one of the lead defendants, "this is a major rebuke
of the government's overblown use of the racketeering laws. These mega-trials turn out to be
mega-mistakes for the government." The current Miami U.S. Attorney Tom Scott, a decent man
and a fine lawyer, had inherited the prosecution. Nevertheless, he continued to make it a priority
of the office, and was devastated by the defeat -- although he publicly stated that he was going to
continue to work with state authorities to federalize these kinds of crimes. Along with co-lead
counsel Leonard Fenn of Miami's DeFabio & Fenn, the skilled defense lawyers in the case had
challenged the overcharging of RICO and Hobbs conspiracy counts at every turn.
According to Matthewman, the prosecution presented the RICO theory as if three defined
phases of the criminal enterprise were planned and organized: first, that "some" of the defendants
were going to the airport to look for victims; second, that the defendants would follow rental cars
coming from the airport to target their victims; and third, to get them to stop, "some" of the
defendants would flag the victims down or try to alert them that there was a problem with their
vehicles. Yet the defense, throughout the trial, made clear to the jurors that the case was not
about a racketeering enterprise, but simply what it looked like -- a string of unrelated muggings
and robberies dating back to 1983 -- crimes for which many of the defendants had already been
convicted and were serving lengthy sentences in state prison. Also disturbing was that
prosecutors had simply recharged -- as Hobbs counts, and then as predicates for the RICO counts
-- many of the same state charges for which the defendants had already been convicted.
During closing arguments, the prosecution pulled out all the stops, which in the end may have
ultimately turned to the defense's advantage. Matthewman recounts that the Assistant U.S.
Attorney trying the case, Beth Sreenan, spent over $10,000 alone on a sophisticated
"multi-media" closing argument, utilizing eight different television monitors, along with
sophisticated charts and videos. The prosecution dropped a few thousand dollars on one video
just so the case-agent could drive to and from the airport and videotape the trip to show to the
jury. In another cunning display of their exploitation of the information superhighway, the
prosecutor arranged it so that every time she mentioned a defendant's name, the defendant's face
would be displayed on all eight televisions simultaneously, followed by that particular
defendant's rap sheet, blown up and highlighted for the jurors. Apparently referring eloquently to
the beautiful mural overlooking all the participants in the trial in the grand central courtroom of
the Miami courthouse, which depicts nature and life, the prosecutor argued to the jurors that the
cunning criminal defendants "moved like a flock of birds."
Turning the prosecution's closing argument on its head, Matthewman pointed to a little, lonely
bird in the corner of the vast courtroom mural to describe his own client in the case, telling the
jurors that when you hear "flock" from the prosecution, "just remember it's a crock." He whipped
out a crumpled piece of paper from his pocket and unfolded it, explaining to the jurors that this
was his fancy chart that he had prepared with the help of his children, so that he could have
something to show the jurors in response to the government's "beautiful charts." As he teasingly
unfolded the paper, Matthewman explained that he felt that his chart underscored exactly what
the prosecution's evidence was in the case -- finally opening the paper so the jurors could see it,
Matthewman revealed a crumpled blank sheet of paper. Even the judge cracked a smile as the
jurors giggled.
Defense lawyers, throughout the prosecution's case, complained about the racial motivations of
the prosecution, as well as the tactics employed with witnesses. Louis Cacuso, the attorney for a
reputed ringleader, David "Robin Hood" Harrell, described how the government had repeatedly
threatened his client's girlfriend with the loss of her child if she did not "cooperate."
This sensational trial was not without many disruptive flare-ups. Apparently the defendants did
not get along well with the deputy marshals guarding them inside and outside the courtroom. At
one point, one defendant spit in the face of a marshal, and several other defendants were subdued
during a disruption in an elevator. Midway through the trial, prosecutors claim that the
defendants were attempting to loosen the arm of a 10-foot long wooden bench in the courtroom,
which prosecutors had hypothesized "could" have been turned into some kind of makeshift
weapon, presumably of the "battering-ram" variety. Not your typical federal defendants.
At one point during this circus, Judge Nesbitt ordered the defendants to sit, and when they did
not do so, marshals swooped in with pepper spray and proceeded to squirt. Apparently, one
marshal got hit in the face, and another was incapacitated by the spray itself. Another marshal
claimed to have been attacked while leading the defendants from the holding cell at the Federal
Detention Center to the courtroom across the street. Interestingly, following the embarrassment
of the acquittals and the hung jury, prosecutors immediately returned an indictment against some
of the defendants for assaulting the federal marshals.
Although jubilant over the verdicts, defense lawyers expressed their deep concern over the
trend possibly established by such a large-scale federal prosecution of street crime. "Hopefully
this will send a message to leave state crime in state court," said co-lead counsel Leonard Fenn,
who represented defendant Johnny Wade. Miami Federal Defender Kathleen Williams, who did
not participate in the case, warned that federal prosecutions should not be used to make up for
what are perceived as inadequate sentences in state courts: "The federal courts are not a
sentencing enhancement system."
Although the U.S. Attorney's Office in Miami has announced that it will retry the defendants,
it remains unclear on which counts the defendants will be retried. Most sources believe that the
federal prosecutors will abandon a second trial on any of the RICO counts, and it appears that
each of the defendants may likely receive a very favorable plea offer. Such offers would avoid
the embarrassment to the government of a second trial, in a city where there are presently a
couple of on-going retrials which have already provided enough embarrassment to the
government for a lifetime. As Matthewman put it best, "had only the federal government taken
the million dollars it spent on this ill-fated RICO prosecution and placed those monies in the
poor Overtown and Liberty City areas where the majority of the defendants were from," the
federal government may have avoided any tourists being robbed in the first instance.
Those responsible for this fiasco lacked what is essential to every good prosecutor's office --
the ability to objectively evaluate a criminal case. Fortunately for the citizens accused, many
jurors in this country do not "leave their common sense outside" when they enter the jury room to
deliberate. In this era of diminishing constitutional rights and continually increasing penalties, a
fair-minded jury often remains the accused's last best hope.
Seventh Circuit Reverses RICO Dismissal
In the January/February RICO Report, this author described the impressive victory of Robert
Tarun, a partner with Chicago's Winston & Strawn, in convincing a federal district judge in
Chicago, to dismiss 31 counts of a RICO indictment on the ground that those counts were
pre-empted by the National Labor Relations Act ("NLRA") and the Labor and Management
Relations Act ("LMRA"). United States v. Palumbo Bros., Inc., 1997 U.S. Dist. LEXIS 15976
(N.D. Ill. Oct. 9, 1997) ("Palumbo I").
Tarun's victory, unfortunately, has proven short-lived. In a less-than-compelling opinion with
enormous implications, the Seventh Circuit recently reversed Judge Bucklo's decision. United
States v. Palumbo Bros., Inc., __ F.3d, 1998 WL 224892 (7th Cir. 1998) ("Palumbo II").
As noted in the earlier column, Palumbo Brothers centers upon wages and benefits paid by the
two corporate defendants in the case, PBI and Monarch, to their unionized employees and to their
employees' unions, the Teamsters Union and the Laborers Union. The indictment alleges that the
defendants engaged in a pattern of racketeering activity spanning from approximately 1973 to
1996.
Count 1 of the indictment, the RICO count, alleges that the defendants executed a scheme to
defraud their employees and labor unions by systematically under-reporting the number of hours
worked, thereby reducing the defendants' contributions to the pension and health and welfare
funds, in violation of the collective bargaining agreements ("CBA") between the defendants and
the unions. As predicate acts for that scheme to defraud, the indictment alleges that, to conceal
their scheme, the defendants sent numerous false statements and compliance documents through
the mail to the unions and to the Illinois Department of Transportation.
Counts 8-30 allege acts of mail fraud connected with the scheme to defraud. These acts are
charged as separate violations of the mail-fraud statute, in addition to their use in Count 1 as
predicate acts for the RICO violation. Similarly, Counts 35-42 are based on the alleged
submission of false statements by the defendants in connection with required ERISA filings.
In his motion to dismiss, Tarun argued that all of the counts discussed above were preempted
by the NLRA, 29 U.S.C. 151, et seq., and/or Section 301 of the LMRA, 29 U.S.C. 185, because
the acts underlying those counts were wrongful only by virtue of the collective-bargaining
agreements ("CBAs") between the defendants and the unions. Judge Bucklo agreed, granted
Tarun's motion, and dismissed Racketeering Acts 1 and 2 in Count 1, Counts 8-30, and Counts
35-42. The government then appealed.
The Seventh Circuit began its opinion by accepting Judge Bucklo's conclusion "that the
alleged criminal conduct described in the indictment also illustrates the defendants' breaches of
the collective bargaining agreements." Palumbo II, __ F.3d at __. The opinion disagreed,
however, with Judge Bucklo's resolution of what it described as the "central issue" in the case:
namely, "whether an indictment that charges criminal offenses and simultaneously implicates
unfair labor practices in these criminal allegations can survive labor preemption." Id. at __.
To begin with, the Seventh Circuit rejected the idea that Garmon preemption forecloses the
government from prosecuting PBI and Monarch for their violations of the CBAs. See San Diego
Bldg. Trades Council, Millmen's Union, Local 2020 v. Garmon, 359 U.S. 236 (1959). Under
Garmon, the NLRB preempts both federal and state claims based on conduct that is "arguably
prohibited" under the NLRA, id. at 242-45, in order to protect the primary jurisdiction of the
NLRB. See Talbot v. Robert Mathews Distrib. Co., 961 F.2d 654, 659 (7th Cir. 1992). According
to the Seventh Circuit, however, Garmon preemption does not apply to the criminal charges in
Palumbo Brothers, for the simple -- and remarkably unpersuasive -- reason that "preemption of
portions of the indictment would leave the United States without recourse to punish criminal
conduct which Congress specifically sought to prevent." Palumbo II, __ F.3d at __. Indeed, the
court held that, unless Congress has expressly indicated to the contrary, Garmon preemption
simply does not apply in the criminal context at all:
[i]n the absence of any express congressional intent that unfair labor practices, which also
independently qualify as violations of criminal statutes, are insulated from criminal liability . . .
the jurisdiction of a federal court to adjudicate a criminal prosecution does not infringe upon or
interfere with the primary jurisdiction of the NLRB.
Id. at __.
The Seventh Circuit also rejected the idea that Section 301 of the LMRA pre-empts the
government's prosecution of PBI and Monarch. At first glance, that idea appears sound: rooted in
the need to maintain "uniformity and predictability" of federal labor law, Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 211 (1985), Section 301 "displaces any independent federal or state cause
of action when the claim concerns a legitimate labor dispute and involves the breach of a
collective bargaining agreement." Palumbo II, __ F.3d at __ (citing Allis-Chalmers Corp., 471
U.S. at 211). Nevertheless, the court held, Section 301 cannot be interpreted to pre-empt a
criminal prosecution that involves -- like the government's prosecution of PBI and Monarch --
violations of RICO, the mail fraud statute, or ERISA, regardless of whether the acts giving rise to
that prosecution involved such a breach.
First, "neither the NLRA nor the LMRA provides criminal penalties for breaches of collective
bargaining agreements." Id. at __. As a result, "labor law does not provide the exclusive remedy
for such a breach that advances a fraudulent scheme to deprive employees and unions of
economic benefits to which they are entitled." Id. at __.
Second, "[n]othing in the legislative history of labor legislation suggests that penalties
imposed for criminal violations should not be available to punish an employer who uses the mail
to execute a fraudulent scheme and manipulates the bargaining process to insulate itself from
criminal liability." Id. at __.
Third, and finally, "there is minimal risk, if any, that prosecuting the defendants for alleged
criminal conduct would impermissibly interfere with the NLRB's jurisdiction; a criminal
prosecution fundamentally does not involve the regulation of labor activities." Id. at __.
The Seventh Circuit's decision in Palumbo II is exceptionally broad. Although the opinion
itself focused on the specific charges against PBI and Monarch, the language of the opinion
indicates that the Seventh Circuit's basic position is that the NLRA and the LMRA never
pre-empt a criminal prosecution. Indeed, the court explicitly said as much in the section of its
opinion, euphemistically entitled "Reconciliation of Federal Labor Law & Policy with Criminal
Jurisprudence":
The existence of labor grievance procedures to resolve unfair labor practices and the
primary jurisdiction of the NLRB to impose remedial sanctions do not relieve an employer of
accountability or insulate it from liability for participating in criminal violations of the law, even
though resolution of the labor dispute and adjudication of the criminal prosecution may involve
the same set of facts.
Id. at __.
The implications of Palumbo II are indeed troubling. Because of that decision, employers are
not only civilly liable under the NLRA and LMRA for violations of their collective-bargaining
agreement with their employees, they are criminally liable as well. The government's prosecution
of PBI and Monarch, therefore, is likely just the tip of the iceberg.
Palumbo II is thus yet another example of the dangers inherent in expansive RICO
interpretations: "garden-variety" civil disputes are turned into RICO predicate offenses; the
predicates are then combined with "imaginative" uses of the mail fraud statute to prosecute
businessmen as racketeers. This certainly was not why RICO was enacted, as an essential weapon
in the battle against organized crime.
Eighth Circuit Rejects Latest DOJ Attempt To Exempt Federal Prosecutors from State Ethical
Rules
As repeatedly chronicled in these pages, the Justice Department has fought a long and
continually unsuccessful war to exempt federal prosecutors from state ethical rules. See, e.g.,
RICO Report, The Champion (Dec. 1995; Mar. 1995; Dec. 1994; May 1994; Aug. 1993; June
1993; April 1993). The DOJ recently lost yet another battle in that war. In an important victory
for those who believe federal prosecutors should be ethically accountable for their actions, the
Eighth Circuit held that Attorney General Janet Reno exceeded her statutory authority when she
promulgated a federal regulation, 28 C.F.R. 77.10(a), that purports to give the infamous
Thornburgh Memorandum (with minor modifications) the force of law. U.S. ex rel. O'Keefe v.
McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998).
The case began as a qui tam action brought by Daniel O'Keefe under the False Claims Act, 18
U.S.C. 3729-33, alleging that McDonnell Douglas systematically mischarged the number of
hours its employees worked on United States military contracts. The government subsequently
intervened in the suit, and the DOJ began pretrial investigation.
During the course of the DOJ's investigation, DOJ investigators made numerous ex parte
contacts with present and former low-level employees of McDonnell Douglas without the
consent of the corporation's counsel. McDonnell Douglas then brought a motion in federal court
for a protective order preventing the contacts. The motion argued that the DOJ's ex parte contacts
are barred by Missouri Supreme Court Rule 4-4.2, which has been adopted, along with all of
Missouri's ethical rules, by the United States District Court for the Eastern District of Missouri.
Rule 4-4.2 provides:
in representing a client, a lawyer shall not communicate about the subject of the
representation with a party the lawyer knows to be represented by another lawyer in the matter,
unless the lawyer has the consent of the other lawyer or is authorized by law to do so.
Additionally, the official comment to Rule 4-4.2, adopted by the Missouri Supreme Court in
State ex rel. Pitts v. Roberts, 875 S.W.2d 200, 202 (Mo. 1993) (en banc), bars ex parte
communications with persons having managerial responsibility on behalf of the organization, and
with any other person whose act or omission in connection with that matter may be imputed to
the organization for purposes of civil or criminal liability or whose statement may constitute an
admission on the part of the organization.
Not surprisingly, the government opposed McDonnell Douglas' motion. In its view, a
protective order was not warranted because the ex parte contacts of the DOJ investigators are
expressly authorized by the recently enacted 28 C.F.R. 77.10(a), which provides:
A communication with a current employee of an organization that qualifies as a represented
part or represented person shall be considered to be a communication with the organization for
purposes of this part only if the employee is a controlling individual. A "controlling individual" is
a current high level employee who is known by the government to be participating as a decision
maker in the determination of the organization's legal position in the proceeding or investigation
of the subject matter.
According to the government, Section 77.10(a) supersedes the local rules of the Eastern
District of Missouri, and thus authorizes the DOJ's ex parte contacts. Alternatively, the
government argued that, in light of Section 77.10(a), the ex parte contacts were "authorized by
law" and thus fell within the express exception to Rule 4-4.2.
McDonnell Douglas responded to the DOJ's argument -- charitably described as legal sophistry
-- by contending that the Attorney General exceeded her statutory authority when she
promulgated Section 77.10(a).
The district court agreed with McDonnell Douglas and granted its request for a protective
order. The order commanded the DOJ to cease engaging in ex parte contacts and to provide
discovery of information obtained from the contacts already made. The government appealed.
The Eighth Circuit affirmed the district court decision. Noting that "it is axiomatic that an
administrative agency's power to promulgate legislative regulations is limited to the authority
delegated by Congress," Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988), the court
concluded that nothing in any of the sections of the United States Code cited by the government
"expressly or impliedly gives the Attorney General the authority to exempt lawyers representing
the United States from the local rules of ethics which bind all other lawyers appearing in that
court of the United States." Id. at 1257. The court thus struck down the regulation as beyond the
Attorney General's statutory authority. O'Keefe, 132 F.3d at 1257 (citing 5 U.S.C. 706(2)(C)
(1994) ("The reviewing court shall . . . hold unlawful and set aside agency action, findings, and
conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right."), Chrysler Corp. v. Brown, 441 U.S. 281, 308 (1979) (holding that a
regulation must be struck down unless "the grant of authority contemplates the regulation
issued")).
The DOJ first argued that the regulation was authorized by 5 U.S.C. 301, better known as the
"Housekeeping Statute," which authorizes the head of a governmental department to "prescribe
regulations for the government of his department." The Eighth Circuit rejected that argument,
noting that the Supreme Court held in Chrysler Corp. that the statute "is indeed a 'housekeeping
statute,' authorizing what the APA terms 'rules of agency organization, procedure, or practice' as
opposed to substantive rules," O'Keefe, 132 F.3d at 1255 (citing Chrysler Corp., 441 U.S. at
309-10), and that numerous federal courts had rejected attempts by government agencies to find
statutory authority for substantive regulations in the statute. See, e.g., Exxon Shipping Co. v.
United States Dep't of Interior, 34 F.3d 774, 776-78 (9th Cir. 1994) (invalidating regulations
allowing agency to withhold deposition testimony of federal employees); In re Cincinnati
Radiation Litig., 874 F. Supp. 796, 826-27 (S.D. Ohio 1995) (invalidating Defense Department
directive authorizing use of human volunteers in experimental research).
The DOJ also argued that various Sections of Title 28 having to do with the authority and
powers of the Attorney General and the DOJ -- Sections 509, 510, 515(a), 516, 519, 533, and 547
-- collectively authorized Section 77.10(a). The Eighth Circuit rejected that argument as well,
pointing out that the Ninth Circuit had previously concluded that none of the sections authorizes
substantive rulemaking, see United States v. Lopez, 4 F.3d 1455, 1461 (9th Cir. 1993) (rejecting
claim that 509, 515, 516, 533, and 547 authorized similar DOJ policy), and concluding that no
reviewing court could reasonably believe that the Sections authorized the regulation. O'Keefe,
132 F.3d at 1256.
Finally, the DOJ argued that Section 77.10(a), as a federal regulation, preempted the local
rules of the Eastern District of Missouri. Quite rightly, the Eighth Circuit dismissed that
argument in a footnote as a "non-issue," noting that "[a] federal regulation cannot preempt
federal law, because 'Supremacy Clause considerations do not come into play when a court
balances competing federal rules.'" Id. at 1257 (quoting City of Kirkwood v. Union Elec. Co.,
671 F.2d 1173, 1178-79 n.14 (8th Cir. 1982)); see also United States v. Klubock, 832 F.2d 649,
651 (1st Cir.) (finding pre-emption doctrine inapplicable to federal court rule that incorporates
state ethics rules), aff'd en banc, 832 F.2d 664, 667 (1st Cir. 1987).
One can only wonder when the Justice Department will tire of trying to convince federal courts
to accept its arrogant and patently unethical position that federal prosecutors are not subject to
state ethical rules. Those rules are essential to protecting the rights of both the guilty and the
innocent; without such rules, overzealous federal prosecutors have free reign to harass and
intimidate witnesses at will, as well as to try to extract incriminating information from
individuals, however unreliable that information may be.
Kenneth Starr's cavalier treatment of Monica Lewinsky's rights is a case in point. News reports
have suggested that the Office of the Independent Counsel may have flagrantly violated ABA
Model Rule of Professional Conduct 4.2, which, like Missouri's Rule 4-4.2, prohibits a lawyer
from "communicat[ing] about the subject of the representation with a party the lawyer knows to
be represented by another lawyer . . . unless the lawyer has the consent of the other lawyer or is
authorized by law to do so." According to those reports, Kenneth Starr sent Linda Tripp to
secretly tape Lewinsky despite knowing that she had a lawyer. He may be able to defend that
conduct as investigation of an ongoing crime or new offense. However, his minions even went so
far as to tell Lewinsky, once they had her sequestered in the now-notorious hotel room, "You
cannot call your lawyer. If you call your lawyer, we cannot grant you immunity." William
Ginsburg & Nathaniel Speights, Behind the Scenes with Monica, Time, Feb. 16, 1998. Clearly,
the approximately eight-hour interrogation of Ms. Lewinsky by a half-dozen agents and
prosecutors who knew she was represented by counsel is, to put it mildly, reprehensible.
It is, of course, precisely Rule 4.2 that Janet Reno intended Section 77.10(a) to supplant.
Starr's alleged treatment of Lewinsky thus demonstrates with remarkable clarity the wisdom of
the Eight Circuit's decision in O'Keefe.
S.D.N.Y. Suppresses Incriminating Statements Obtained in the Absence of Counsel
The Sixth Amendment provides that a criminal defendant has a right to counsel "at or after the
initiation of adversary judicial proceedings - whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 688-89 (1972).
That right, however, is offense specific: while a defendant cannot be interrogated in the absence
of counsel with respect to the charged offense, no counsel is necessary when he is questioned
about conduct unrelated to that charge. See generally McNeil v. Wisconsin, 501 U.S. 171 (1991);
Moran v. Burbine, 475 U.S. 412 (1986).
Despite the offense-specific nature of the Sixth Amendment right to counsel, a number of
circuits have held that, once attached, the right to counsel for a charged offense carries over to
"closely related" but uncharged offenses. See, e.g., United States v. Arnold, 106 F.3d 37 (3d Cir.
1997); United States v. Kidd, 12 F.3d 30 (4th Cir. 1993); United States v. Hines, 963 F.2d 255
(9th Cir. 1992); United States v. Cooper, 949 F.2d 737 (5th Cir. 1991); United States v.
Mitcheltree, 940 F.2d 1329(10th Cir. 1991); see generally RICO Report, The Champion (Aug.
1997) (discussing positions courts have taken concerning "closely related" rule). In other words,
as the Tenth Circuit said in Mitcheltree -- in which a not-in-custody defendant was questioned by
a prosecution informer -- "[t]he government may violate a defendant's Sixth Amendment right to
counsel when it deliberately elicits uncounseled statements about very closely related crimes
which arise out of the same course of conduct as the charged offenses." 940 F.2d at 1342.
Although the Second Circuit has yet to explicitly embrace the "closely related" doctrine, Judge
Shira A. Scheindlin of the Southern District of New York recently made use of the doctrine in an
unusual multi-defendant, multi-count RICO and drug-conspiracy case. United States v. Santiago,
__ F. Supp. 1998 WL 61849 (S.D.N.Y. 1998) aff'd, 1998 U.S. App. LEXIS (2d Cir. June 10,
1998).
Angel Santiago was arrested on or about August 29, 1996, on charges that he sold two vials of
crack to an undercover police officer. After being arrested again a couple of months later for
selling five vials of crack to a police officer, he was charged with violating New York's drug laws
and placed in custody on Rikers Island to await disposition of those charges. While in custody,
Santiago obtained counsel.
On August 7, 1997, Santiago was indicted federally on the RICO and drug-conspiracy charges.
While the federal charges were under investigation, agents of a joint task force -- consisting of
DEA agents and officers of the New York City Police Department -- interviewed Santiago
pursuant to a writ of habeas corpus ad testificandum. When asked how that interview came
about, one agent stated:
Well, through my investigation into the Power Rule gang, I knew that Angel Santiago was a
member. So at that point I took a shot at interviewing him . . . I just, on a hunch, pulled him out
of Rikers Island. He's a member of the gang, he was looking at two state cases at the time, so I
figured he would be a candidate for an interview.
Id. at __.
In order to obtain the writ of habeas corpus ad testificandum, an AUSA submitted an affidavit
stating that "she has charge of an investigation being conducted by the United States Attorney for
the Southern District of New York in the above-entitled matter." The affidavit also stated that the
AUSA believed Santiago had certain information and materials necessary to present to the Grand
Jury. The affidavit then requested that a writ be issued to the New York City Department of
Correction ordering it to produce Santiago "so that said prisoner may meet with representatives
of the United States Attorney's Office for the Southern District of New York in preparation for
his Grand Jury appearance in the matter of United States v. Doe" -- the grand jury "undoubtedly"
considering the charges ultimately brought against Santiago and the other defendants in the RICO
case. Id. at __.
After a federal judge granted the writ, a DEA agent and an NYPD officer removed Santiago
from Rikers Island and took him to the Manhattan office of the DEA. Santiago, however, never
met with any AUSA in preparation for any grand jury testimony, nor did he ever testify in any
proceeding. Moreover, the government conceded that the agents neither notified Santiago's
lawyer in his pending state cases about the interview, nor provided a different lawyer to represent
him on the potential federal charges. The DEA agent testified that he advised Santiago of his
Miranda rights; Santiago, in turn, testified that he repeatedly requested counsel.
During the interview, Santiago was not questioned about the pending state charges. He was,
however, questioned about the membership and activities of the Power Rules gang, and he made
a number of incriminating statements about his own membership and activities with the gang.
Santiago then moved the district court in his federal criminal case to suppress his incriminating
statements on the ground that he was unconstitutionally denied his right to counsel. The court
agreed and suppressed the statements.
The district court began by finding that the application for the writ of habeas corpus ad
testificandum was misleading, because "Santiago never met with any representative of the United
States Attorney's Office, never prepared for any grand jury testimony and never testified in a
grand jury," and that Santiago's testimony that he repeatedly requested counsel during the
interview was credible. Id.
The court then turned to the question of whether, given that Santiago's request for counsel
during the interview was denied, his incriminating statements were taken in violation of his Sixth
Amendment rights. The court quickly concluded that they were under New York law: "Once a
defendant in custody on a particular matter is represented by or requests counsel, custodial
interrogation about any subject, whether related or unrelated to the charge upon which
representation is sought or obtained, must cease." People v. Steward, 88 N.Y.2d 46, 50-51
(1996).
The court also concluded that Santiago's statements were also taken in violation of federal law,
because the charges under investigation were "inextricably intertwined" with the pending state
charges. "In determining whether the pending and impending charges are 'closely related' or
'inextricably intertwined,' courts have established a number of criteria, including similarities of
time, place, person, and conduct." Santiago, __ F. Supp. at __ (citing Arnold, 106 F.3d at 41;
Kidd, 12 F.3d at 33 ("In order to fall within this exception, the offense being investigated must
derive from the same factual predicate as the charged offense.")). Such similarities were clearly
present in Santiago's case.
First, the time was identical, given that the charged crack sales occurred during the course of
the RICO/crack-distribution conspiracy.
Second, the place was nearly identical: Santiago's individual sales took place in the Bronx, as
did the sales attributed to the Power Rules gang. Indeed, one of the uncharged sales and one of
the charged sales were both alleged to have occurred on Union Avenue in the Bronx.
Third, although the identity of the participants in the charged and uncharged offenses were not
precisely the same -- Santiago may have acted alone in selling the crack, whereas the federal
charges involved a "large-scale, well-organized group effort to distribute crack" -- "it is not
unreasonable to assume that Santiago's source for the crack was a member of the Power Rules
group." Santiago, __ F. Supp. at __.
Fourth, the conduct, distribution of crack cocaine, was the same. See Arnold, 106 F.3d at 42
(noting that the "same conduct" analysis turns on whether the acts in question were of the same
general type, not whether they were the very same act).
Those similarities, according to the district court, were "more than sufficient to support a
conclusion that the charged and uncharged offenses were 'closely related.'" Id. at __. The court
thus concluded that "Santiago's questioning in the absence of counsel . . . violated his Sixth
Amendment rights" and suppressed the incriminating statements.
It is also worth noting that, in addition to suppressing Santiago's statements, the district court
strongly criticized the government's abuse of the writ of habeas corpus ad testificandum (a
subterfuge that occurrs often in the federal courts). Pointing out that using the writ "to facilitate
investigative interviews with law enforcement officers . . . is engaged in with precious little
authorization from either the statutory language or the courts,"Judge Scheindlin concluded:
What went wrong here is obvious. Law enforcement agents of the Joint Task Force should
not be considered "representatives of the United States Attorney's Office." [Nevertheless,] agents
were allowed to question a prisoner who was the target of the federal investigation, in the
absence of either a representative of the United States Attorney's Office or his own counsel. The
agents used the writ to obtain an uncounseled confession, which the Government now seeks to
introduce in evidence. What occurred here is exactly what the district judge feared when she
asked the AUSA if "the person would have the opportunity to speak with an attorney or if the
Government intended to call him before the Grand Jury without his consulting with counsel."
This behavior is inappropriate and should not be permitted.
Id.at __.
Readers are a vital source of information without which this column could not be supplied
with current information on RICO developments. Information regarding developments in
pending cases, decisions and interesting briefs and motions should be sent to:
RICO Report
Barry Tarlow
9119 Sunset Boulevard
Los Angeles CA 90069
Phone (310) 278-2111
Fax (310) 550-7055
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